Nebraskans know every drop of water is precious. Agriculture is our top industry. It makes up 20% of our economy, and it generates one in four jobs in our state. Access to water makes this possible. We have the most irrigated acres of cropland in the country. Three of eight acres of farmland in Nebraska are irrigated.
Fifty years ago, far-sighted Nebraskans set up a system of water management, including our Natural Resources Districts (NRDs), that has allowed us to manage our water based on river basin. This has allowed our state to maintain the Ogallala Aquifer within one foot of where it was in the 1950s.
The Ogallala aquifer, also referred to as the High Plains aquifer. Source: National Oceanic and Atmospheric Adminstration
By contrast, Colorado has mined their water. The Ogallala Aquifer under Colorado has dropped nearly 15 feet since the 1950s. Now, Colorado is aggressively planning new developments that threaten Nebraska’s water resources. Last year, Colorado released their South Platte Basin Implementation Plan. It was updated last month and now includes 282 total projects to meet their growing demands. Altogether, these projects cost an estimated $9.8 billion.
Governor Clarence J. Morley signing Colorado River compact and South Platte River compact bills, Delph Carpenter standing center. Unidentified photographer. Date 1925. Print from Denver Post. From the CSU Water Archives
Thankfully, 100 years ago Nebraskans negotiated an agreement with Colorado over the use of South Platte River water. The South Platte River Compact (Compact) was signed by Nebraska and Colorado in 1923 and ratified by Congress in 1926. It entitles Nebraska to 120 cubic feet per second (cfs) of water from April 1st through October 15th (irrigation season) and 500 cfs of water from October 16th through March 31st (non-irrigation season). Under the Compact, we can only claim our non-irrigation season water entitlement by building a canal and reservoir system—known as the Perkins County Canal—along the South Platte River. Until we build the canal, Colorado has no obligation to deliver the water.
South Platte River Storage Study Area. Illustration shows water availability, in blue circles, compared with demand at various places along the South Platte River. The yellow area is the study area. (Illustration by Stantec).
As Colorado’s desire for water grows, they’re acting as if Nebraska’s non-irrigation season water rights under the Compact don’t exist. In 2016, the Colorado Legislature passed HB16-1256, the South Platte Water Storage Study, into law. Its purpose was to identify water storage options along the lower South Platte River. Colorado wants to make sure no water “in excess of the minimum legally required amounts” gets to Nebraska. In the study’s final report, Colorado clearly assumes that Nebraska’s legal requirement is only the 120 cfs during irrigation season. Since we haven’t built the canal, Colorado is not planning to deliver any water to us during non-irrigation season. Zero.
The good news is that the Compact gives Nebraska undeniable authority to construct a canal to claim our non-irrigation water flow. It even gives us legal entitlement to land in Colorado to build it. Senator Dan Hughes, of District 44, has prioritized LB 1015, authorizing the Department of Natural Resources to design, construct, and operate the Perkins County Canal and reservoir system. My budget recommendation to the Legislature includes $500 million for the project. This is a bargain compared to the nearly $10 billion Colorado is preparing to spend on their water resources.
Our proposed canal has caused a stir in Colorado. In response to our plans, a legislator in Colorado introduced SB22-126 earlier this month to prioritize water storage projects in the South Platte Basin. Colorado’s leaders believe that “possession is nine-tenths of the law.” I am concerned that even though Nebraska has clear entitlements to South Platte River water under the terms of the Compact, it will be difficult for us to claim what we are owed once municipalities in Colorado become reliant on the water.
There’s no doubt that Colorado plans to take the 500 cfs of water guaranteed to Nebraska during non-irrigation season under the Compact. On February 7th, a coalition of water districts gave a presentation to the Colorado Legislature on ways to shore up South Platte River resources. The presentation indicates that Colorado only recognizes its 120 cfs delivery commitment to Nebraska during irrigation season. In other words, the presentation assumes Nebraska is not entitled to receive a single drop of South Platte River water for almost half the year.
We must take action now to protect this water from being taken. Our ag producers rely on it for irrigation. Communities along the Platte River use it for drinking water. The water is critical to power generation in Nebraska, and our natural habitats along the Platte depend on these water flows.
People have asked, “why not slow down and discuss reworking the terms of the compact?” Any renegotiation would take time to hammer out. It would require approval from the Colorado Legislature and Nebraska’s Unicameral. What are the odds of that happening anytime soon? Keep in mind: delays only benefit Colorado. Remember, Colorado is trying to accelerate their work along the South Platte River. Pausing our plans, while they move full steam ahead, would put us at risk. The longer we delay, the more we risk losing access to the water we’re due.
This month, I’ve held town halls across the state to inform Nebraskans about our water rights with Colorado. There has been overwhelming support for moving forward on the canal. People understand that the price of inaction is far higher than the funding needed to secure our water rights. I’ll encourage you to do what I asked of them: contact your state senator to let them know your thoughts on LB 1015. The passage of this bill is a necessary first step.
Fifty years from now, Nebraskans will look back on this generation. Will they say we had the foresight to secure our water resources? Or will they say this generation failed?
If you have questions about the proposed canal, write me at pete.ricketts@nebraska.gov or call 402-471-2244.
Irrigation sprinklers run over a farm in Longmont in the South Platte River basin. One goal of an emerging storage project on the South Platte is make it easier to temporarily use water from agriculture to meet the growing needs of the Front Range metro area. Photo credit: Lindsay Fendt/Aspen Journalism
Every year, an average of 142 billion gallons (436,000 acre-feet) of water slips down the South Platte River out of Colorado and into Nebraska. Right now, that water feeds into habitats of endangered fish and birds, but most of it could legally be diverted and used in Colorado instead.
For decades, these escaping river flows — sometimes millions of acre feet of water more than Colorado is required to deliver to Nebraska — have been seen as a loss by Front Range water managers, but the hefty price tag of infrastructure to divert, store and move water has kept new projects from getting off the ground. Now, with communities struggling to bolster their supplies to feed the Denver metro area’s exploding population, a group in the South Platte basin thinks it can develop a regional plan to tap the river’s potential.
The infrastructure concept could provide a large chunk of the Front Range’s projected future water needs, and the concept’s designers say, if executed properly, the project would keep agricultural communities intact and create environmental benefits. Skeptics say it’s a costly plan that would further drain an already beleaguered river system.
Constructing it would require billions of dollars and an unprecedented amount of cooperation among water users, but in today’s era of scarcity, Some water managers say it may be the simplest path forward.
A group called the South Platte Regional Opportunities Working Group, or SPROWG, is proposing to store 175,000 acre-feet of water in a series of reservoirs on the South Platte River, from north of Denver to the Morgan County line. The project also includes a long pipeline to pump water from the river back to the metro area to be cleaned and re-used. Graphic credit: CWCB via Aspen Journalism
Birth of the South Platte Regional Water Development Concept
Despite the amount of Colorado water headed into Nebraska, water from the South Platte is still used on a huge scale. Diversion ditches from the river feed cities, agriculture and industry along the Front Range, including farms in Weld County east of Greeley, but not all the water applied to the land is consumed — about 50 percent of the water from flood irrigation seeps back into the river.
Legally, these return flows can be reused downstream, but they aren’t always released back to the river in areas where they can be captured. And because much of the water is wastewater, its quality is often too low to be used as drinking water.
These complications have made South Platte water an undesirable option for many municipalities, and growing cities have, instead, turned to water from the other side of the Continental Divide. This water is cleaner, less expensive due to existing infrastructure and can legally be used for any type of use without going through water court. But the use of Western Slope water on the Front Range has long drawn criticism from water officials on the other side of the mountains: They see such use as overuse of their resources.
The under appreciation for South Platte water started to change in 2010, after the state released the Statewide Water Supply Initiative, a data analysis of Colorado’s water supplies and projected future demand. The study estimated that by 2050 Colorado would need between 310,000 and 560,000 more acre-feet of water than it can currently supply. About 50 to 60 percent of this water would be needed within the South Platte Basin, the fastest-growing part of the state. This anticipated supply gap forced Front Range water providers to consider new options.
“We knew there was a looming problem out there. The South Platte has a big issue coming for it with this huge-growing population,” said Joe Frank, the general manager for the Sterling-based Lower South Platte Water Conservancy District. “The two biggest sources being looked at were the dry-up of South Platte irrigated agriculture or to use more (Western) Slope water — and we knew that both of those had issues.”
Around that time, Frank and six other water experts started holding informal meetings to discuss South Platte water supplies. The group became known as the South Platte Regional Opportunities Working Group. About the same time that group was meeting, the Colorado legislature also grew interested in the river.
In 2016, the General Assembly ordered a study to determine how much Colorado water was entering Nebraska and to analyze possible water-storage projects to capture that flow. This South Platte Storage Study found that over a 20-year period, Colorado delivered nearly 8 million acre-feet of excess water to Nebraska. But while there was plenty of water available in the river, accessing it would be costly or environmentally damaging.
The group took that information and — using funds from water providers such as Denver Water, Northern Water and Aurora Water — commissioned its own consultants. The group’s findings became known as the South Platte Regional Water Development Concept, and outlined a possible plan for a water system on the river. The current proposal includes three new storage facilities — near Henderson, Kersey and Balzac — and a pipeline from the Balzac facility to the metro Denver area. The concept’s designers say it could consistently provide 50,000 acre-feet of water every year.
With a concept in hand, the group expanded into a task force, drawing about 40 volunteer members with varying interests in water. The task force is now using $390,000 in grant funding from the Colorado Conservation Board and the South Platte and Metro basin roundtables to hire consultants to analyze the project idea.
Water for cities with no ‘buy and dry’
Although much of the water that could fill the concept plan would be unappropriated return flows, some of it would probably need to come from agriculture. In the past, this was done by cities that purchased farms with senior water rights and fallowed the lands. If done on a large scale, the practice, known as “buy and dry,” can eliminate agricultural communities.
Rather than promote buy-and-dry, the creators of the concept plan want to use alternative transfer methods to buy temporary water leases from farmers on an annual or seasonal basis. These agreements allow farmers to get money for their water without permanently drying up their farm. While alternative transfer methods are considered better for farmers, executing the agreements on a large scale requires infrastructure to move the water around.
“With ATMs, you are going to need to move that water from the farm to the city,” said Todd Doherty, the founder of Western Water Partnerships, a group that facilitates alternative transfers. “The geography is such on the South Platte that the farms are downstream from the city, so infrastructure is almost absolutely necessary to move ATM water back upstream.”
With three storage facilities near farmlands and a pipeline running to the Denver area, the South Platte concept could be used to facilitate alternative transfer methods.
“I think farmers should have options and municipalities should have options,” said Jim Yahn, the manager of the North Sterling Irrigation District and an original member of SPROWG. “This project has infrastructure to get seasonal water from agriculture and turn it into a year-round supply for a municipality.”
The South Platte River runs by a utility plant near I-25 in Denver. A group of Front Range water providers are working on a plan that includes up to 175,000 acre-feet of new water storage along the river.
Environmental concerns
Because the concept plan is still in its early phases of development, most environmental groups have yet to release an opinion on the project. Still, there are concerns about depleting the flows of the South Platte or further degrading its waters.
In hopes of reducing impacts, some environmental representatives have joined the concept plan task force to provide feedback. Frank said the promise of mitigation and environmental enhancements – improvements on the river made by water providers – have gotten several environmental groups “on board” with the project’s idea.
Still, other groups say the projected supply-demand gap is overblown and any new infrastructure is an unnecessary drain on the state’s rivers…
Hefty price tag
As projected in the South Platte Storage Study, the costs to build the project would be huge. Although the project doesn’t yet carry a final price tag, initial estimates put the infrastructure costs at nearly $2.5 billion.
This cost is undeniably high, but with water becoming a more expensive commodity, water providers say it’s an increasingly reasonable one to consider. The cost estimates show that water from the concept plan would cost about the same as building any other water project or buying into an existing one.
For these reasons, many water providers in the Front Range are already exploring how they fit into the regional project.
“Scarcity is essential in driving the municipal world towards more expensive solutions,” said Sean Chambers, the director of water and sewers for the city of Greeley. “We haven’t coalesced around an idea about how exactly we fit into the long-range vision, but we know we belong at the table.”
Editor’s note: Aspen Journalism covers rivers and water in collaboration with The Greeley Tribune and other Swift Communications newspapers. The Tribune published this story on Saturday, Nov. 26,2018.
Illustration shows water availability, in blue circles, compared with demand at various places along the South Platte River. The yellow area is the study area. (Illustration by Stantec).
The Lower South Platte Water Conservancy District will submit a proposal to act as fiscal agent for the Water Supply Reserve Fund Proposal being drawn up by the South Platte Regional Opportunities Working Group. That decision came during Tuesday’s meeting of the district’s Executive Committee.
The $390,000 project, described in the nearly impenetrable technical language of water experts, is essentially the next step after the South Platte Storage Study, which was completed late last year.
The study, authorized by the Colorado General Assembly in House Bill 16-1256, looked at the stretch of the South Platte River between Kersey and the Nebraska state line in an attempt to find water storage to fill a crippling water gap that is just 12 years away. According to the 2015 Colorado Water Plan, by 2030 the need for water in Colorado will exceed supplies by 560,000 acre feet, or 182 billion gallons per year, and most of that is here in the South Platte River Basin.
Joe Frank, general manager of the LSPWCD, said the study is good at indicating what can or should be done to meet the growing water gap, but it says nothing about how to do it or by whom. And it’s the “by whom” part that needs to be addressed next, Frank said, because without an entity to fund an promote projects, nothing gets done.
Drawing pipelines and pumps is the easy part, for me, because I’m an engineer,” Frank said. “But we have to figure out who we are, and that’s the hard part. The institutional structure is what we still have to figure out, and that’s a big part of this (new project.)”
The new project first establishes a fiscal agent and project sponsors, initially SPROWG members, to prepare a funding proposal and a work plan. It’s that fiscal agent part that Frank asked his executive committee to consider. LSPWCD was the fiscal agent on the South Plate Storage Study; the job entails making sure funds are paid to the right people at the right time and are properly accounted for.
According to an Outline of Proposed Tasks, the next task – and the one Frank thinks will be most crucial – is to identify or create an organization to support “the development, operation, financing, ownership and governance of the South Platte Basin regional water development concept …”
Illustration shows water availability, in blue circles, compared with demand at various places along the South Platte River. The yellow area is the study area. (Illustration by Stantec).
The best way to meet Colorado’s growing water demand and still protect irrigation water rights is probably a combination of increased surface storage and underground, or aquifer storage. But even that combination won’t bridge the gap between water demand and supply.
That’s the good news and the bad news from the recently-completed South Platte Storage Study Final Report, released Dec. 15. The report was written by Stantec, a Canada-based design, engineering and construction firm, and Leonard Rice Engineering of Denver.
The study, authorized by the Colorado General Assembly in House Bill 16-1256, looked at the stretch of the South Platte River between Kersey and the Nebraska state line in an attempt to find water storage to fill a crippling water gap that is just 12 years away. According to the 2015 Colorado Water Plan, by 2030 the need for water in Colorado will exceed supplies by 560,000 acre feet, or 182 billion gallons per year, and most of that is here in the South Platte River Basin.
Experts already have said that water conservation alone won’t bridge the gap as thirsty Front Range cities continue to grow; even legislators have made it clear that they want to see proposals for storage as much as for conservation.
But, as with everything else having to do with water, finding and then using that storage is going to be complicated.
According to the SPSS report, it’s estimated that the South Platte carries almost 300,000 acre feet of water per year out of Colorado in excess of the amount needed to satisfy the South Platte River Compact with Nebraska. There are, however, a lot of “buts” that need to be attached to that broad statement.
For one thing, that’s not an average, that’s what the study authors called an “annual median.” That’s the middle number between the largest and smallest amounts that are lost; median, or “mean,” often is used instead of average because it’s a more accurate estimate of something over time.
Actual losses over a 20-year period between 1996 and 2015 varied from a paltry 10,000 acre feet to a whopping 1.9 million acre feet. It’s important to note that stream flows during that time frame included one of the largest floods in the state’s history and a follow-up flood that did nearly as much damage in the lower reaches of the river, as well as a period of extended drought.
The report also says that considerably more water is available at the Julesburg end of the reach than at the Kersey end, primarily because of return flows from irrigation. That indicates the need for a large reservoir to capture water before it leaves the state…
That may not be easy; according to the report, massive amounts of water would have to be diverted.
“Large diversion and conveyance structures would be needed to capture and convey water from the river to off-channel storage,” the study says. “At the Balzac gage near the middle of the SPSS study area, a diversion capacity of 550 (cubic feet per second) would be needed to capture 85 percent of the available water.”
That’s as much as some of the largest diversion structures now on the river. The North Sterling Inlet Canal, for instance, was taking around 520 cfs before cold weather and icing required it to be scaled back. Prewitt Reservoir Inlet can divert as much as 600 cfs when the water’s available.
It’s important to note the phrase “85 percent of available water.” Elsewhere in its recommendations section the report states that capturing all of the excess water is simply not feasible, and that’s not just during flood conditions.
“No feasible storage concepts or reasonable combinations of concepts are capable of putting all the available flow in the lower South Platte River to beneficial use,” the report says. “Therefore as a general principle, more storage will always be ‘better’ in this region in terms of maximizing available supply for basin water users.”
Still, finding and optimizing storage is a must if there is to be any hope of providing enough water to go around. The report, naturally, recommends a combination of storage methods, and even suggests that a cooperative effort of upper basin and lower basin storage concepts would be more efficient and store more water than a major “on-stem” reservoir. On the other hand, the on-stem option would be easier to build and yield more water quickly; it also faces possibly insurmountable permitting requirements.
No water storage concept is without good-versus-bad arguments. Aquifer or “underground” storage is complicated to manage but cheaper to create, and it can be easily ramped u over time. Storage options are grater in the lower basin but they’re further from where the water will actually be needed. Underground storage is great for agricultural use but the water would have to be extensively treated for municipal and industrial use.
The study even raised some new questions and left unanswered some old ones. For instance, abandoned gravel pits weren’t even included in the project, and the SPSS authors recommend further study of that option. They also recommend further studies of the South Platte above Kersey and of the Cache la Poudre basin.
Ultimately, the study’s authors say, the SPSS is a “starting point” and further investigation of any of the storage methods or sites would be needed.
“The work in the SPSS is a starting point for more specific alternative investigations,” the study says, “but substantial additional analysis will be required to test the feasibility of specific storage options based on points of diversion, intake systems, and methods of operating to meet demands.”
Almost 8 million acre-feet of water has left Colorado in the past 20 years that the state could have kept, according to preliminary data from a legislative-commissioned study expected later this year…
That takes us to what happened to that 8 million acre-feet of water on the South Platte. It went to Nebraska. There’s a compact, like a contract, between Colorado and Nebraska, dating from 1923, that dictates that a certain amount of water from the South Platte goes to Nebraska, which preserves the river’s downstream environment and aquatic wildlife.
The 8 million acre-feet exceeds what Colorado was legally required to send to Nebraska. But the problem for Colorado is that there’s no place to put that water.
Lawmakers and water experts have been jawing about the lost water problem for years. In 2016, Rep. J. Paul Brown of Ignacio sponsored a bill to put some teeth into the conversations, by asking how much water is being lost to Nebraska and where it can be stored.
The final answer won’t be known until the end of this year, but earlier this month, an interim water committee at the state Capitol took a first look at the data and some of the sites where storage might happen.
It’s not an easy conversation. Building new reservoirs takes decades and often has to survive lawsuits and complicated federal and state permitting processes.. Look at the Northern Integrated Supply Project near Fort Collins, which could lead to a new reservoir and expansion of a second. The project is in its 14th year and will likely take another five or six years to get through all the permitting. In the life of a reservoir, that’s short. Compare that to the Animas-La Plata reservoir in southwestern Colorado, where construction was declared finished in 2013. The project began construction in 1968.
While new storage is definitely possible for that South Platte water, other storage ideas are being considered in the study. According to Andy Moore, a senior water resources specialist with the Colorado Water Conservation Board, the state’s primary water agency, 147 sites were identified on first blush for water storage.
Those sites fall into three categories: new reservoirs, rehabilitating and/or expanding existing reservoirs, or refilling underground storage. That’s water that would be pumped into aquifers, which are underground rock formations that hold water. Colorado has four major aquifers, with the three largest all along the Eastern Slope. In 2000, the South Platte aquifer, according to the Colorado Foundation for Water Education, served about 70 percent of the Front Range population.
The site list has been pared down several times, to eliminate sites too far from the main body of the South Platte or for sites that were too small to be useful. That leaves 16 sites, mostly in northeastern Colorado. Over the next several months, those sites will be evaluated for cost, benefits and other factors.
The first look at possible storage along the South Platte was welcomed by Chris Treese, external affairs manager for the Colorado River Water Conservancy District, the water agency in charge of the Colorado. “The Western Slope has long thought that as Coloradans we’re in the water world together, but every basin should look to own resources and capabilities first before looking for outside resources,” he said.
Treese wasn’t surprised by the numbers. “This is what Brown and others in the South Platte have been saying – that it’s a problem with a suitable storage location.” He added that the study will identify whether storage is “one silver bullet or a lot of smaller opportunities.”
Rep. Jeni Arndt of Fort Collins, a Democrat who chairs the House Agriculture, Livestock and Natural Resources Committee, favors refilling aquifers first and looking at other possibilities next. Arndt sponsored a bill, signed into law this year by the governor, that allows the state engineer to set up rules for the use of water that is pumped into nontributary aquifers. Those are aquifers not connected to surface water, like rivers.
Refilling aquifers, Arndt told Colorado Politics, is environmentally friendly, with less evaporation and less permitting. It is also practical from a political standpoint, she said, meaning that there should be less opposition to refilling aquifers than to building new reservoirs.
Refilling is “appealing, makes sense, it’s cost effective and it’s politically doable,” she said.
Brown was pleased with the study’s first data.
“This is the kind of information needed to make good decisions about what to do on the South Platte,” he said this week. He pointed out that the Arkansas, Rio Grande and Colorado rivers all have instream storage, and the only place without it is the South Platte.
For years, “the low-hanging fruit has been West Slope water,” Brown explained. And while Colorado has always delivered its Colorado River water as it should under the compact, the supply is just not there anymore. “It’s not just a West Slope issue – it’s an issue for the entire state. People who know water are very interested in making sure we don’t waste any and don’t send any more water to Nebraska than what they’re entitled to.”
The Colorado Water Conservation Board and the Colorado Division of Water Resources is holding a series information and input meetings on the new Agricultural Water Protection Water Right law. A handful of local farmers and other interested parties attended the session on Wednesday at the Sterling Public Library.
The new law, which was sponsored by both Rep. Jon Becker, R-Fort Morgan, and Sen. Jerry Sonnenberg, R-Sterling, installs safeguards in the event that irrigators want to change part of their water right to a new beneficial use.
Deputy State Engineer Kevin Rein conducted the session, first walking through the process of writing rules and regulations to put the new law into effect, and then encouraging questions and discussion of the new rules.
Much of the discussion centered around whether the new program was even feasible for individual irrigators or would be a better fit for irrigation districts and ditch companies. It was generally agreed that, because of costs and the intricacies of water law, the larger the entity managing the lease, the better the plan would work. Individual irrigators could pledge a certain number of their water shares toward the ditch company’s AWPWR program and let the company worry about return flows, legal fees, and other details based on the total amount of water leased.
Don Ament, who represents Colorado in the South Platte Recovery Program, said he wants to follow up to see whether irrigators in the South Platte River Basin would, by virtue of being part of the SPRP, be automatically part of a conservation program, as required by the new law. He was told during the meeting that “Title 38” of Colorado Revised Statutes might prohibit that. It’s possible the wrong CRS was cited, since Title 38 has to do with tenant and landlord rights, while Title 37 is about water and irrigation. Ament said he would have to look into the law…
There also was significant discussion of just how much water a farmer could lease. The new law limits the amount of water an irrigator can lease out to half of his consumptive use right. That’s to help make sure most of the irrigation water still goes to irrigate crops.
Early in the discussion, Rein displayed a graphic that showed a water right that allowed 10 cubic feet per second of water flow through an irrigator’s head gate. If his historic return flow was four CFS, that meant his consumptive use is six CFS. He would then be allowed to lease half of the six CFS, or three CFS, under the AWPWR program. That would leave him a total of seven CFS of ditch flow to irrigate with. Because he would be running less water on his land, his return flow would naturally diminish. That’s why the law requires a substitute water supply plan; it would show how the irrigator would maintain his historic return flow of 4 CFS.
But that, it turns out, is the simple part. To complicate matters, irrigators don’t actually measure their water rights in a ditch company in cubic feet per second, but in shares. And farmers typically wouldn’t want to lease half of their total shares as part of an alternative transfer, even temporarily.
If, for instance, a farmer owns 100 shares in a ditch company, he may want to commit half of that, or 50 shares, to the AWPWR program. Because he would have only 50 shares in the program, he could lease only half of those 50 shares. But return flow still needs to be calculated, and return flow is measured in acre feet of water per year or in cubic feet per second. The irrigator (or his ditch company) would have to show how that return flow would be maintained.
To further complicate matters, shares don’t necessarily mean a specific amount of water. The amount of water a farmer’s 50 shares contains depends on how much water is available, who else is taking water with a higher, or older, priority, and other factors.
Rein said all of those factors would be up to the state engineer’s office to determine…
While discussion moved into the more esoteric realm of hypothetical legal matters, John Stulp, who serves as Gov. John Hickenlooper’s special policy advisor for water, reminded the group of the purpose of the new law.
“Keep in mind that the spirit of the law was to protect agriculture, and to give farmers the chance to participate in some of those revenue opportunities that are available through ATMs,” he said. “You need to be getting ready; it may not be your generation (that participates) but you need to do the groundwork for being flexible with your water right.”
Joe Frank, manager of the Lower South Platte Water Conservancy District, is known to be skeptical of ATMs because there is rarely any mention of how the water is to be stored for transfer and what kind of infrastructure will be needed to transfer it. He said after the meeting that, while he thinks flexibility in determining the end user on an ATM is a good thing, the new law still doesn’t address some of his concerns.
“There are still the inherent question marks about ATMs,” Frank said. “This just gives somebody who’s thinking about ATMs the ability to go to court once, change their water right, and be able to be flexible in who they lease the water to.
“But ATMs in general still have the issues that I brought up; you need a place to store it, you need a way to get it to the end user, you need a way of bringing multiple users together, so there are still those inherent issues.”
Frank said ATMs still represent a “drying up” of some farmland because the water is being diverted from irrigation to other consumptive uses.
“My alternative to ‘buy and dry’ is new supply,” he said. “We need to capture unappropriated water and store it, and maybe plug in ATMs. In my perfect world the best way to plug in an ATM is as part of a new project that takes advantage of available water supplies.”
The act authorizes an owner of an absolute decreed irrigation water right in water division 1 or 2 that is used for agricultural purposes to seek a change-in-use decree in water court to obtain an agricultural water protection water right.
Under the changed water right available in water division 1 or 2, the water right owner may apply for a renewable one-year substitute water supply plan through which the water right owner may lease, loan, or trade up to 50% of the historical consumptive use portion of the water subject to the water right without designating the specific beneficial use for the leased, loaned, or traded water. The one-year substitute water supply plan authorizing the lease, loan, or trade of water may be renewed twice without reapplying if the terms and conditions of the plan remain unchanged. A new application is required every 3 years to maintain the substitute water supply plan.
Pursuant to rules developed by the state engineer and reviewed by the water judge for water division 1, the state engineer may approve a one-year renewable substitute water supply plan authorizing the lease, loan, or trade of water subject to an agricultural water protection water right in water division 1 or 2 if the following conditions are met:
The remaining portion of the water subject to the water right must continue to be used for agricultural purposes;
The water right must be protected by the owner’s participation in an agricultural water protection water program, for which the Colorado water conservation board will establish minimum criteria and guidelines;
The owner shall not lease, loan, or trade water subject to the water right outside of the water division with jurisdiction over the location of historical consumptive use; and
The transferable portion of the water subject to the water right must be delivered to a point of diversion that is subject to an existing water court decree.
Flood irrigation in the Arkansas Valley via Greg Hobbs
From DWR/CWCB:
In early April, the Division of Water Resources (“DWR”) and the Colorado Water Conservation Board (“CWCB”) will jointly hold four informational meetings and solicit public input related to the implementation of House Bill 16-1228, known as the Agricultural Water Protection Water Right Bill. This legislation, enacted in 2016, allows water users, if they choose, to change an irrigation water right through the water court to an “Agricultural Water Protection Water Right.” The change allows a portion of the water right to be put to a new beneficial use through a substitute water supply plan (“SWSP”) approved by the State Engineer, while a portion of the original water right must continue to be used for agricultural purposes. The legislation directed the CWCB to develop Criteria and Guidelines to address provisions in the bill and directed the State Engineer to promulgate rules that would guide the approval of a SWSP.
The meetings will be held at the following times and locations:
Monday, April 3, 3 – 6 p.m., Island Grove Regional Park, Events Center Conference Room A, 501 N 14th Ave, Greeley, CO 80631
Tuesday, April 4, 3 – 6 p.m., Otero Junior College Student Center Banquet Room, 1802 Colorado Ave, La Junta, CO 81050
Wednesday, April 5, 3 – 6 p.m., Sterling Public Library Community Room, 420 N 5th St, Sterling, CO 80751
Thursday, April 6, 3 – 6 p.m., Upper Arkansas Water Conservancy District Board Room, 339 E Rainbow Blvd # 101, Salida, CO 81201
The agenda for each meeting will be the same: description of House Bill 16-1228; discussion of the draft SWSP Rules; and discussion of the draft Criteria and Guidelines for the Agricultural Water Protection Program. Please visit the DWR website for more information on the legislation, public meetings, and process for providing feedback. The CWCB’s draft Criteria and Guidelines and the State Engineer’s draft Rules related to the implementation of House Bill 16-1228 are also available on the website, and the public is encouraged to review these drafts before the meetings.
Please use this link to RSVP to a particular meeting location by March 30 if you plan to attend.
The Colorado Water Conservation Board and the Colorado Division of Water Resources will hold a series information and input meetings on the new Agricultural Water Protection Water Right law.
There will be a meeting in Sterling April 4 from 3 to 6 p.m. at the Sterling Public Library.
Correction: The meeting is April 5th.
The new law, which was sponsored by both Rep. Jon Becker, R-Fort Morgan, and Sen. Jerry Sonnenberg, R-Sterling, installs safeguards in the event that irrigators want to change part of their water right to a new beneficial use.
Under Colorado water law, an irrigator who wants to lease part of his water to another end-user must go through a state water court process to get what is called a “decree change.” A key to the decree change is making sure the irrigator maintains the return flow that would have resulted from using the water for irrigation. Return flow is water that has been used to irrigate a crop and either runs off or seeps down into the river aquifer to be used by irrigators downstream.
Because water leases tend to be temporary, they are called “alternative transfer methods” because they are an alternative to buying the irrigated land outright and drying up the farmland, a practice called “buy and dry.”
Previously, the irrigator had to have a specified end user for the ATM. If a change in the end user was desired, the irrigator had to go back to water court and repeat the decree change process.
Under the new law, an irrigator will be able to change the end-user by submitting a substitute water supply plan to the state engineer’s office. The SWSP will have to include an explanation of how the irrigator will maintain his return flow obligation. The irrigator will still have to have a conservation program in place through a local agency such as a water conservancy district or irrigation district.
Joe Frank, manager of the Lower South Platte Water Conservancy District, said the new law is an improvement over a similar measure that was introduced a year before.
“Before, there was some fear that (water transfers) could lead to speculation, and that’s just not something we want to see,” Frank said. “(SB 16-1228) allows some flexibility, but reins in on the speculation piece so you can’t change all of your water right.”
He said that while such alternative transfer methods are becoming more common, they aren’t ideal as a solution to the water shortage.
“We don’t want to make this the end-all solution to the gap (in water supply) because it is still drying up some ag, but it isn’t a permanent dry-up,” Frank said. “The good part is you don’t have to keep going back to change your end-user.”
The Lower South Platte Water Conservancy District’s executive committee approved the district’s nearly $1 million budget for 2017 Tuesday morning.
At its October meeting the full board authorized the executive committee to move ahead with formal adoption in November after a public hearing. Board Chairman Ken Fritzler briefly adjourned the executive committee meeting Tuesday to hold a public hearing, but there were no public comments. After re-convening, the attending members adopted the budget.
The bottom line of $995,257 includes a beginning fund balance of $250,885, total tax revenue of $244,104, and two grants from the Colorado Water Conservation Board totaling $363,168, which the district will administer. One grant is to help manage the Northeast Colorado Water Cooperative and the other is for the year-long South Platte Storage Study.
The other big chunk of revenue, $146,600, comes from the myriad services LSPWCD provides to water users in the area.
On the expenditure side, the largest portions are personnel costs of $254,450 and a contingency reserve of $215,387. The funds shown on the revenue side for the two CWCB grants also show on the expenditure side, since they are merely pass-through funds.
In other business Tuesday, Manager Joe Frank formally notified the committee that the district has selected MWH Global, formerly Montgomery Watson Harza, headquartered in Broomfield, and Leonard Rice Engineers of Denver as contractors on South Platte river storage survey. The survey is a study of water storage potential in the South Platte River basin. It is the first project in eastern Colorado to result from the Colorado Water Plan that was presented to Gov. John Hickenlooper in November 2015.The study is mandated by HB 16-1266, which is the first legislation to emanate from that water plan.
Frank also told the committee that terms for five seats on the district’s governing board will expire at the end of this year. They include two seats in Logan County, two in Morgan County, and one in Sedgwick County. Board members who want to re-apply for their positions must do so in writing by the end of November.
At the heart of this [water law] system, and protected by a section of the Colorado Constitution, is a concept called “prior appropriation.” The way this works is that some water users have priority over other water users, with the effect that, in times of scarcity, holders of senior water rights receive their water and holders of junior water rights do not. The seniority of water rights is generally based on a first-to-use-wins concept, meaning the most senior (and therefore the most valuable) water rights go back to the 1800s.
Any upstream activity even remotely threatening to downstream water rights holders is cause for great alarm. This came to light in the 2016 session of the Colorado Legislature when a bill (House Bill 16-1005) was introduced intended to regulate the collection of rainwater in barrels.
What finally emerged, after heated debate, is a new law allowing rainwater running off the rooftop of a residential property containing no more than four dwelling units to be collected in no more than two barrels having a combined storage capacity of no more than 110 gallons. These barrels must have a sealable lid; the water from the barrels can only be used at the property where the water is collected; and it can only be used for outdoor purposes “including irrigation of lawns and gardens.” The water “shall not be used for drinking water or indoor household purposes.” (Whether the water could be used for bathing activities if conducted outdoors is not clear.)
The state engineer, “to the extent practicable within existing resources,” is instructed to provide information on his agency’s website about the permitted and prohibited uses of rain barrels and water collected therein. The state engineer is also given authority to curtail rain barrel usage in situations where it might impair the rights of downstream water users. And the state engineer is required to diligently study whether rain barrel usage is causing injury to holders of downstream water rights and to report back to the Legislature on this issue by no later than March 1, 2019.
The Colorado Department of Public Health and Environment also gets into the act. That agency is instructed, “to the extent practicable within existing resources,” to develop “best practices” intended to address nonpotable usage of collected rainwater and issues relating to disease and pest control. When and if such best practices are developed, they are to be posted on the department’s website and on the state engineer’s website. Alternatively, the state engineer’s website can provide a link back to the department’s website.
Finally, knowing the penchant of homeowners living in common-interest ownership communities to fight over almost everything, the Legislature added language to the new law addressing rain barrel usage in these communities. An owners association in a common-interest ownership community cannot prohibit rooftop water collection using rain barrels. The association can, however, “impose reasonable aesthetic requirements that govern the placement or external appearance of a rain barrel.” So, for any of you who have the misfortune of serving on your neighborhood architectural control committee, it’s time to develop design guidelines for rain barrels.
The local water district agreed Tuesday to manage the financial aspects of a study of water storage potential on the South Platte River basin. The study is the first project in eastern Colorado to result from the Colorado Water Plan that was presented to Gov. John Hickenlooper in November 2015.
The study is mandated by HB 16-1266, which is the first legislation to emanate from that water plan.
The Lower South Platte Water Conservancy District Board of Directors voted Tuesday to allow the district and its staff to act as “fiscal agent” for the $211,168 study, which is to be completed by November 2017. As fiscal agent, the district will assure that the grant money is paid to the appropriate contractors in a timely manner. In return, it will charge a fee of 5 percent, or about $10,500.
The board also got its first look at a revised version of the scope of work for the study. A primary point of discussion Tuesday was just what part of the basin will be studied. Joe Frank, manager for the district, pointed out that while the law authorizing the study specifies that the study is to “Evaluate sites in the Lower South Platte Basin from Greeley to Julesburg,” it also allows for the inclusion of “promising sites in other parts of the Basin.” However, Frank said, it’s doubtful that many promising sites can be found above Greeley because of population density.
“They’re going to have to narrow it down to ten or so sites, because the grant is only so big,” Frank said. “I think they’re going to have to look at the most promising sites between Greeley and Galesburg.”
On Thursday May 12, Western Resource Advocates joined others to celebrate HB16-1005, legalizing the use of rain barrels, becoming law.
Governor Hickenlooper signed a rain barrel at the HB16-1005 bill signing ceremony. Photo via @jessica_goad and Twitter.
Recently passed legislation in Colorado allows for small scale residential collection of rain from rooftops into barrels like the one pictured here. Photo: Roger Mommaerts, Flickr Creative Commons
Photo credit: Photo credit: Krzysztof Lis, Creative Commons, Flickr. Via the Colorado Independent.
Gov. John Hickenlooper signed House Bill 1005 in May, and now it’s up to residents to buy and install rain barrels, as long as limitations are followed.
Most single-family homes and townhomes can use rain barrels to collect water, but homeowners can’t have more than two 55-gallon barrels.
Those who live in residences with homeowners associations shouldn’t buy and install rain barrels right away, though. Like the American flag, an HOA can’t ban the barrels, but it can implement requirements about how they’re used, since the barrels fall under an exterior change. Abby Bearden, office manager and architecture review committee manager for Greeley Community Management, LLC, said rain barrels should be approved prior to installment, that way there are no issues or unforeseen problems.
Once approval is given, rain barrels can be purchased in a number of hardware stores or online. Installation is relatively simple, but TreePeople, a Los Angeles company that disseminates information about rain barrels, said the water catching devices should be installed on a raised surface, attached to a gutter. A downspout will be needed to get downpour directly into the barrel. It’s also important to make sure the barrel is secure, in case of harsh weather.
Once the barrels start collecting rain, the water can’t be used for just anything. The new law allows for outside use on the owner’s property, so watering lawns and plants outside is OK, but greenhouses and indoor uses are not allowed.
Reagan Waskom, director of the Colorado Water Institute, said the barrels should be cleared about once a week during the summer, and should be disconnected during the winter.
It shouldn’t take too many storms before there is plenty of water gathered to use on lawns and gardens, Waskom said.
Waskom said he doesn’t anticipate too many people running out and buying rain barrels, but he said in other states, about 10 percent of the population actually uses them. That figure shouldn’t be enough to hurt water right owners, which is a big reason why the controversial legalization of rain barrels was finally approved.
The way Colorado’s water law works is similar to a first-come, first-serve model. It’s called prior appropriation. The first person to take and use the water for an agricultural, industrial or household reason got the first rights to that water. These are called senior water rights. Those who secured water rights later can use what was remaining after the senior water user took what they were allotted. These are called junior water rights.
There was concern that rain barrels can prevent runoff into the water sources people have rights to, which would hurt the non-senior holders first, but Colorado State University conducted a study that showed rain barrels shouldn’t hurt the water supply.
Not everyone was convinced, like Sen. Jerry Sonnenberg, R-Sterling. He said the bill didn’t do enough to guarantee rain barrel users would be responsible in case their use of rain barrels does hurt in senior water rights holders. He was one of three legislators to vote against the bill.
There is a provision in case there is a loss of water due to rain barrels, though. It was written into the bill that there can be a reexamination of regulation if there wasn’t enough runoff water getting to water sources.
“If everyone were to (buy barrels) there are the checks and balances in there so somebody can go back there and look on a regular basis to see if there is, indeed, an impact,” said Northern Water’s Brain Werner in May.
Next Wednesday, August 10 is the first day that most Colorado residents can legally collect rainwater off their roofs into rain barrels.
Mother Nature doesn’t seem to have taken much note of it – the weather forecast for much of the state calls for hot and sunny weather without a hint of rain.
It’s taken years for this state to get there. Colorado is a “first-in-time, first-in-line” state, which means that the person who claimed the water rights first gets to use what they need, and everyone else gets what’s left. Farmers, ranchers and other water users believe that right extends to even the rain that falls from the skies, because that water drips off roofs, onto the ground and eventually into streams, rivers and underground natural storage, known as aquifers.
After a prolonged debate, water-rights holders agreed to accept the legalization of rain barrels, as long as the law acknowledged senior water rights, and the state committed to rmonitoring rain-barrel usage.
The law says you can have up to two 55-gallon rain barrels. The rain barrel must be sealable to prevent mosquitoes from setting up shop. You can only use rainwater for “outdoor purposes,” such as watering your lawn or garden. The rain barrel must be used for collecting rainwater through a downspout that comes off your roof. Rainwater can be used only on your own property, not your neighbor’s.
You can get rain barrels at Home Depot, or online through a number of stores, such as Lowe’s, Amazon, Ace Hardware or through garden stores. BlueBarrel systems offers a recycled rain barrel option. A group called Tree People demonstrates how to install a rain barrel — something you might want to look at before deciding if a rain barrel is for you.
So, how can you use your collected rainwater?
Washing your car? Sure! Washing your neighbor’s car? Only if your neighbor moves it to your property for washing. Theresa Conley of Conservation Colorado points out that you might have some issues with water pressure.
Washing your outdoor windows or siding? Sure!
Putting water in your dog’s outdoor water bowl? Or maybe putting it in your livestock trough? Maybe not. The law says rainwater isn’t to be used for drinking, although that’s generally viewed as a human consumption issue, not animal.
Reagan Waskom, director of the Colorado Water Institute at Colorado State University, said there were rainwater bills passed in 2009 that allowed rain barrels for homeowners with domestic well permits, for home use only. Those laws were viewed as not applying to livestock. “The only way you could allow your horse to drink rainwater is if the horse could reach through your window to the sink,” he quipped.
Then there’s the “ick” factor. As Waskom sees it, “if you don’t lick your roof, don’t put it in your mouth.” Meaning, rainwater that comes off a roof isn’t treated and isn’t safe for consumption. Think bird or insect droppings and older roofs with deteriorating shingles that are losing gravel, tar or other bits of debris.
Ick.
One more thing: Rain barrels will be legal for another portion of Colorado residents – but not for everyone. The law applies to people living in single-family residences or a “multi-family residence of four or fewer units.” According to Conley of Conservation Colorado, the law does not allow rain barrels to be used by schools or for homeowners’ associations that have more than four homes connected by a common wall (think townhouses, or townhouse-style condos, which are common throughout the metro area). That said, HOAs can’t ban rain barrels for single-family homes and townhomes with four or fewer units, says Molly Foley-Healy of the Colorado Homeowners Association, which does legal work on behalf of HOAs. An HOA can impose requirements on what the rain barrel looks like and how it’s placed on the downspout, according to Conley, who helped draft the bill.
Top ten ways you can use rainwater
10. Washing your car;
9. Filling your outdoor koi pond;
8. As water for a slip-and-slide, probably okay;
7. Dust suppression – you could use it to water off the dust on your porches and patios;
6. Filling birdbaths;
5. Washing your dog, as long as you do it outdoors;
4. Cleaning outdoor equipment, such as gardening tools;
3. Using it to put out small fires, like in a fire pit. A reminder, though, fire pits are NOT legal in Denver, although they are legal in other counties;
2. Watering your outdoor garden. CSU Extension Service says 110 gallons, the maximum amount that can be collected in two rain barrels, would provide enough water for about 180 square feet, roughly the size of a 15-foot x 15-foot garden. Waskom says you could also water your indoor plants, if you take them outside to do it;
1. Water your lawn or outdoor landscaping. That’s the heart and intent of the new law – to allow Coloradans to water lawns and gardens.
Top ten ways you can’t or shouldn’t use rainwater.
10. Filling your hot tub. Probably not so good for your hot tub’s filtration system, especially if you have an older roof;
9. Filling your kids’ wading pool;
8. Indoor washing – dishes, laundry, yourself or your pets;
7. Cooking;
6. Drinking;
5. Filling the water tanks in your camper or RV, or flushing out the water lines;
4. Bobbing for apples;
3. Filling up your beer buckets for BBQs or other parties;
2. Water balloons for outdoor water fights, squirt guns and other outdoor water toys. Again, kind of an “ick” issue;
1. “Home-Alone”-style stunts, where you could set up a bucket of water on a railing in order for it to fall on somebody. (Yes, someone actually suggested that.)
There will be eyes on Colorado’s new rain barrel law: the state water engineer (yes, we have that) is is required to be involved in the new law. Their biggest job for the August 10 roll-out, according to Deputy Engineer Kevin Rein, was setting up guidelines for rain barrel use, which is now on the Division of Water Resources website.
Under the new law, the state engineer has to determine whether allowing rain barrels has caused injury to those with the first-in-line water claims.
It won’t be easy, according to Rein. The division is currently monitoring a pilot project on rain barrels near Sterling Ranch in Littleton; otherwise, they’re likely to find out about injuries to water users through complaints and other data. “It’s information we’ll pick up,” he told The Colorado Independent Monday. “If someone believes they have been harmed by rain barrel use, we’re counting on them to let us know.”
Even then, Rein said, it will likely be difficult to measure. Rainstorms generate a small amount of runoff from roofs and downspouts, he said, and much will depend on the magnitude of a storm.
If there’s any harm to water users, it’s most likely to come out when the state engineer updates the legislature, but that won’t happen until 2019. The state engineer does have the ability to curtail use of rain barrels if such harm is discovered.
The bottom line on rain barrels: Using two rain barrels to water your garden could save up to 1,200 gallons per year. And Conservation Colorado says it’s a great way to connect to the state’s water supply, because using a rain barrel tunes you into Colorado’s natural rain cycles.
With the approach of legal use of rainwater collection on August 10th, Colorado residents are asking a lot of questions. Before you try reading the actual legislation, we’ll cover some of the basics.
New laws allow for the collection and storage of rainwater for use on the property from which it is collected. Specifically, this water is to be used for outdoor purposes, including the watering of lawns, plants and/or outdoor gardens. It excludes human consumption, filling hot tubs, and providing water for animals, along with a few other uses.
Two laws were enacted which establish allowances for the limited collection of rainwater from rooftops of residential dwellings. It’s important to follow the restrictions before you use rain barrels legally in Colorado. These two laws are HB16-1005, which speaks to the city homeowner, and SB09-080, which applies to the rural resident that qualifies for exempt wells. More information about these laws can be found in the publication http://extension.colostate.edu/topic-areas/natural-resources/rainwater-collection-colorado-6-707/.
Members and staffers of the Lower South Platte Water Conservancy District’s board of directors have questioned figures published last weekend that put the cost of the Colorado Water Plan at nearly $6 million…
Joe Frank, LSPWCD executive director, said he questions the accuracy of the figures because of a conversation he’s had with Brent Newman, a program director with the Colorado Water Conservation Board, which produced the CWP. According to Hartman’s figures the roundtable groups for the Denver metro area and the South Platte Basin, which collaborated on a joint Basin Implementation Plan, spent $2.2 million on that plan. But Frank said his conversation with Newman put the number at $1.3 million, or a little more than half of the amount estimated by Hartman.
Several board members said this morning that even if the $6 million figure is accurate, it’s not out of line for the work that was done, and the results have been well worth the money.
“I don’t know if you can put a value on the relationships that have grown out of this,” said Brad Stromberger, a board member from Iliff. “The amazing thing was that people who might’ve never talked to each other before, and certainly never talked to this extent, actually sat down and worked out a plan they all can agree on. I just don’t think you can put a value on that.”
The board members also answered criticism that little has happened since the plan was unveiled in November, and that there aren’t specific project recommendations in the plan. They pointed out that the Colorado Water Plan wasn’t meant to promote specific water storage projects or conservation strategies, and that some movement is being seen.
“It’s meant to be a blueprint,” said Gene Manuello of Sterling. “But you can’t make recommendations for a specific project in a statewide plan. A water storage project is going to affect someone upstream or downstream, and you have to work those things out.”
Frank said the plan does, in fact, specify how much water will have to be found over the next 30 to 50 years, and it lays out a process for identifying and developing projects. The board members pointed to House Bill 16-1256, which is aimed at better identifying and recommending water storage possibilities in the South Platte Basin, as one of the results of the CWP. In fact, Section 1 of the bill even mentions the CWP as a reason for the South Platte study to be done.
Frank said even that legislation, which Sen. Jerry Sonnenberg, R-Sterling, helped sponsor, addresses two competing needs in the search for adequate water. The bill was introduced by Sen. Paul Brown, R-Ignacio, with the intent of finding ways to make more trans-mountain water diversion projects unnecessary. Frank pointed out that a study that identifies water storage opportunities in the South Platte Basin helps water users on both sides of the Continental Divide.
As for the apparent time lag between the plan’s introduction last year and work actually being done, Frank said, “There’s real time and then there’s water time. Sometimes a lot of talking has to be done to make sure everybody’s on board with a project.”
Graded on 17 energy and environment bills picked by Conservation Colorado, 31 of 34 Democrats in the state House scored 100. Eleven of 17 Democrats in the Senate got perfect scores, as well.
On the Republican side, Rep. Kevin Priola scored the highest in his House caucus, 44 percent. Sens. Randy Baumgardner, Bill Cadman, Larry Crowder, Owen Hill, Ellen Roberts, Mark Scheffel and Jack Tate topped all party members in the upper chamber at 27 percent each.
Of the three Democrats who were less than perfect by Conservation Colorado’s grade, Rep. Ed Vigil scored the lowest, 67 percent, for his votes on three unsuccessful bills, House Bill 1441, requiring the Public Utilities Commission to consider the full cost of carbon for electricity generation; House Bill 1310 to make operators liable for oil and gas operations; and House Bill 1355 on local governments’ authority over where oil and gas facilities locate.
Reps. Millie Hamner and Paul Rosenthal each scored 89 percent. Rosenthal was docked for his vote on House Bill 1355. Hamner was flagged for voting against House Bill 1228, which became law and allows one-year water rights transfers.
In the Senate, Mary Hodge was the lowest scoring Democrat with 80 percent. She lost points on two bills. She voted with Republicans in favor of Senate Bill 007, which would have encouraged the use of biomass fuel for renewable energy generation in areas with high risk of wildfire.
She also voted in favor of Senate Bill 210, which would have allowed voters to decide whether to borrow money to expedite major road-and-bridge projects.
Democratic Sens. Kerry Donovan, Cheri Jahn, John Kefalas, Linda Newell and Nancy Todd each scored 91 percent. They also voted for Senate Bill 007, which passed the Senate 24-11, but was killed by a Democrat-led House committee.
The lowest scores in the Senate went to Republicans Kevin Grantham, Kent Lambert and Vicki Marble, each with a 9.
The lowest scores in the House, at 11 each, were assigned to Republicans Justin Everett, Gordon Klingenschmitt, Clarice Navarro and Jim Wilson.
Aurora has filed a water court challenge to its 2009 agreement with the Lower Arkansas Valley Water Conservancy District, claiming legislation the city itself backed could hurt its ability to remove water from the Arkansas Valley…
HB1228, the latest version of flex water rights legislation Aurora, Colorado Corn and Ducks Unlimited began promoting in 2013, was signed into law by Gov. John Hickenlooper in May. The current bill is titled “Alternative Transfer Mechanism for Water Rights” rather than flex legislation.
During committee hearings, lawmakers tiptoed around saying the bill set up a flex water right. But some members of Colorado Water Congress jokingly called it “Son of Flex” during the process.
The bill allows water to be transferred from farms to other uses five years out of 10, but only within the basin of origin under a new type of court decree. It also requires the Colorado Water Conservation Board and state engineer to approve and develop rules about how to implement transfers on an annual basis.
Aurora’s lobbyist, Margy Christiansen, registered in support of the bill in March. Also in March, Lower Ark officials testified before the CWCB that Arkansas Valley Super Ditch would have no interest in using the legislation because it was too cumbersome.
Lower Ark proposed a different method that has yet to be introduced as legislation.
In a court filing Friday, Aurora’s attorney John Dingess asked Division 2 Water Court Judge Larry Schwartz to limit Super Ditch’s used of HB1228, claiming it would reduce the amount of water available to Aurora to take out of the Arkansas River basin.
One of the provisions of the 2009 agreement between Aurora and the Lower Ark was that Aurora would first attempt to lease water, if needed, from the Super Ditch.
In his filing, Dingess argues that Super Ditch would not be able to lease water to Aurora because the city is outside the Arkansas River basin. He also argues there would be less water available to Aurora because the new bill would make leases available five years out of 10.
In the Super Ditch pilot program, leases are available only three years in 10 from any farm.
Aurora is constrained by its 2003 agreement with the Southeastern District to take water only three years in 10 until 2028. Aurora could lease water in seven years out of 15 until 2043 under the agreement. Aurora is limited to leasing 10,000 acre-feet of water (3.26 billion gallons) annually and only in drought-recovery years.
Finally, Dingess questions the constitutionality of HB1228 because it promotes speculation.
“The change frees up to half the yield of the water right from the anti-speculation doctrine in that neither the type of use nor place of use need be specified in the change decree,” Dingess wrote. “Suspension of the anti-speculation doctrine presents constitutional questions.”
The Yampa River flows through the Carpenter Ranch. Photo courtesy of John Fielder from his new book, “Colorado’s Yampa River: Free Flowing & Wild from the Flat Tops to the Green.”
Authorizing the use of rain barrels wasn’t the only major water decision to come out of the 2016 legislative session, but no matter your views on the issue, it was clearly this session’s shiny new dime.
Gov. John Hickenlooper signed House Bill 16-1005 into law on May 12, the day after the session ended.
The new law allows most Colorado households to collect rain coming off of rooftops into two 55-gallon rain barrels. That water can only be applied to outdoor use, such as watering lawns and gardens.
Rain barrel use has actually been legal for some Coloradans since 2009, primarily for those who don’t have well access. But the ability for urban dwellers to collect rain has been a controversial issue, blocked primarily by rural lawmakers and their supporters who fear such use will interfere with the state’s prior appropriation doctrine. The implication is that rainwater, which drains into ground water basins along the Front Range, for example, belongs to those who hold first claim on water rights and who use that groundwater for irrigation purposes.
Conservation groups have argued that allowing municipal residents to collect rainwater will help educate them about the need to conserve water. Such education could even help with the implementation of Hickenlooper’s statewide water plan, which includes a lofty water conservation goal of 400,000 acre-feet.
City slickers can start collecting rainwater on August 10.
With the exception of the rain barrel bill, water issues took something of a back seat in 2016. The interim water resources review committee, which typically sponsors the year’s major water bills, had nothing for lawmakers to consider in 2016.
But that didn’t stop lawmakers from coming up with their own water ideas.
On Thursday, Hickenlooper signed HB 16- 1256, which tasks the Colorado Water Conservation Board with studying the South Platte River for possibilities on water storage.
The bill, sponsored by Rep. J. Paul Brown, a Republican from the southwestern town of Ignacio, tackles the issue of trying to hang onto millions of acre-feet of water that annually leaves Colorado via the South Platte and heads into Nebraska. Water experts have long noted that Colorado sends more water into Nebraska from the South Platte than is required by a nearly century-old water compact.
But why would a Western Slope lawmaker, whose district is the furthest away from the South Platte, take an interest in a South Platte reservoir? It’s all about protecting Western Slope water, Brown said.
Brown told this reporter that the state water plan envisions more water flowing from the Western Slope to the Eastern Plains. At the same time, Colorado River water, the main body of water on the Western Slope, is needed to boost Lake Powell water levels, which are currently at historic lows. That lake provides water to Arizona, Nevada, California — which is coming out of a record drought — and even Mexico, under water compacts. “We just don’t have the water” to send to the Eastern Plains, Brown said.
He also pointed out that most of the water that will fill an expanded Gross Reservoir in Boulder and Glade Reservoir in Larimer County comes from the Western Slope. “I support all of that, but I also believe we shouldn’t let the South Platte River water leave the state,” Brown said.
Water storage along the South Platte would solve this dilemma. The idea dates back at least 50 years, when a reservoir was proposed for The Narrows, an area along the South Platte near Fort Morgan. That idea was ultimately vetoed by President Jimmy Carter, and since then, some of the land intended for the project has been developed.
Sen. Jerry Sonnenberg of Sterling marshaled the storage bill through the Senate. “I think we will see out of this — no more talk, no more hypothetical — locations we can pursue. We have places that could be options, such as Pawnee Pass between Kersey and Wiggins, or The Narrows, which would be the big project. Small projects also could be necessary. But this study will set those locations.”
Added Sonnenberg, “All of this is part of the grand scheme to keep Colorado’s water in Colorado.”
Storage on the South Platte will also help protect endangered species and promote recreational use, Brown said. Coming up with the money for storage will be tough, he said, and it won’t happen overnight. It will take years of planning, but Brown is hoping that process can be speeded up — something another one of this year’s bills could help with.
On June 8, Hickenlooper signed a bill authorizing a position that would work on one of the biggest problems with new water storage projects: local, state and federal permitting. That new law, also carried by Sonnenberg, tasks a gubernatorial appointee with coordinating the permitting process.
Lawmakers did reject one proposal tied to the state water plan. That bill, HB 16-1313, would have asked local communities to incorporate water conservation and water management goals from the state water plan into their own master plans. It would have also asked cities and towns to require developers to incorporate some of those conservation and management goals into their development plans as a condition for approval.
The bill had bipartisan sponsorship throughout its trip through the House, including favorable votes from 10 mostly-rural Republican lawmakers and the entire Democratic caucus of 34. Rep. Jon Becker of Fort Morgan was among those 10 Republican lawmakers to vote in favor of it.
Environmental groups like Conservation Colorado and Trout Unlimited backed the bill, as did Northern Water and Adams County. But other county governments across the state opposed the bill and some lawmakers — even those who voted for it — said the measure was unnecessary and that county governments didn’t need the state’s permission. Republican sponsor Rep. Don Coram of Montrose acknowledged that some counties already do what’s included in the bill, but wanted the General Assembly to encourage more of it.
The measure met its match in the Senate, where it was assigned to the Senate’s “kill committee:” State, Veterans and Military Affairs. There, with Sonnenberg in opposition, it lost on a 3-2 vote.
The interim water resources review committee, of which Becker and Sonnenberg are both members, begins its summer schedule on June 20 with a tour of the Gunnison basin.
Let’s say you were a legislator in Colorado during this year’s session, and you needed some help making policy decisions on a topic that required scientific knowledge. What might you do?
Because you’re a booster of the state, you’d know that we have some of the finest academic and research institutions in the country. These include the University of Colorado, Colorado State University, the University of Denver, the National Renewable Energy Lab and the National Center for Atmospheric Research. So it would make sense to ask those groups what they think on a given subject before moving forward. That, after all, is how public policy-making ought to work: Get the facts, make the policy.
But the facts-first and policy-later approach is not how some Colorado leaders like to tackle at least one serious issue: climate change. During Colorado Senate debate about adopting targets for the state’s Climate Action Plan, Republican Sen. Kevin Lundberg testified that the science wasn’t “settled” yet. Sen. John Cooke, also a Republican, went further. Manmade climate change was a myth, he said, effectively putting our hard work on climate change on the same level as believing in unicorns and fairies. Neither man is one of the fringe elements of the Legislature; in fact, the leading force behind climate denial has been the Republican president of the Senate, Sen. Bill Cadman.
Yet their positions run counter to conclusions reached by every one of the state’s academic and research academies. Are these elected officials really discounting the work of our great state institutions?
There is absolutely no scientific case to be made for denying human impact on climate change. That means that the opinions of these legislators are just that – opinions based solely on hearsay or newspaper and talk-show statements by non-scientists who cite non-climatologists. If that’s how some policymakers approach this issue, how are they thinking about health care, economics, public safety, education or water quality? Is this the approach you’d take when fixing your car, having serious surgery or making health-care decisions for your child? [ed. emphasis mine]
Most lawmakers in the nation and around the world don’t act this irresponsibly. Science-based policymaking on climate issues has become a global phenomenon, now integrated into decision-making by almost 200 nations and in every area of our federal government.
In Miami, the science behind rising seas is one of daily concern. For water planners in California, drought science is nothing short of riveting, and in Alaska, where coastal communities built on permafrost are collapsing into the sea, science is meeting the budget in painful ways.
Lawmaking based on ideology is damaging in material ways. At the end of March, Colorado GOP legislators voted to defund the state Department of Health and Environment so that it can’t issue air-quality permits or perform inspections. Why? Because these elected officials oppose enforcement of the Environmental Protection Agency’s Clean Power Plan, the American response to climate change, which brought China and India to the table in Paris to try to broker a global deal.
But defunding an environmental agency won’t stop the Clean Power Plan; it merely hurts business. First, it does nothing to stop regulation, despite what some might think; it merely delays it. That means law-abiding businesses that need air permits to operate will simply have to wait, and then wait some more. Second, polluters breaking the law and violating the Clean Air Act at the expense of our kids’ health will no longer get caught and punished. (This is not a controversial issue: We all agreed that clean air was a good idea in the 1970s, and Americans overwhelmingly support the Clean Air Act.) Third, if Colorado refuses to do this work, the EPA will step in, so you’ll get out-of-state regulation anyway, exactly the opposite of the GOP’s goals for the state.
Why do legislators want to do this silly stuff? Because, according to Rep. Bob Rankin, Western Slope residents are “terrified” of the EPA Clean Power Plan. Give me a break: The state has mostly met the plan. Solar energy is thriving and producing tons of jobs. Aspen/Snowmass and Vail Resorts, responsible directly or indirectly for tens of thousands of jobs, both support the plan. Even the gas drillers at WPX Energy I met with last fall were diligently monitoring their own methane emissions and were hardly terrified.
Fact-based policy-making tends to work really well. It’s when we make decisions based on fantasy, sadly, that real people and real businesses suffer.
Gov. John Hickenlooper has added water to the list of needs that could be funded if the General Assembly reclassifies the state’s hospital provider fee.
Hospitals in Colorado pay a fee to the state, based on the number of overnight patient stays and outpatient visits. Those funds are matched with federal dollars and the money is used to pay for uninsured care and Medicaid expansion.
The fee currently counts as state revenue under the Taxpayer’s Bill of Rights. But Democrats, including Hickenlooper, would like to reclassify the fee as a state-owned business, or enterprise. That would remove the provider fee dollars from TABOR revenue limits, estimated in 2016-17 at $656.5 million.
The fee is among several types of state revenue that are pushing state spending to those TABOR revenue limits. Currently, any dollars that exceed the TABOR limit must be refunded to taxpayers, although those refunds haven’t been necessary for more than a decade. However, state economists believe that if the fee isn’t reclassified, refunds would be required, as soon as next year.
Democrats have tried unsuccessfully for two legislatives sessions to persuade Republicans, including the Senate Republican majority, to allow that reclassification. Senate President Bill Cadman of Colorado Springs drew a line in the sand before the 2016 session even started, releasing an opinion by legislative attorneys that said the reclassification would be unconstitutional.
Democrats countered with opinions from current Attorney General Cynthia Coffman, a Republican, and her predecessor, John Suthers, who both said the change would be legal.
Hickenlooper has been weighing the idea of a special session to revisit the hospital provider fee issue, which would bring lawmakers back to the Capitol, most likely in early July. If Hickenlooper vetoes a bill that would gradually allow the sale of full-strength beer and wine in grocery stores, that issue could end up on the special session agenda, too.
Hickenlooper has until tomorrow to make a call on the beer bill; by law, the governor must decide what to do with any bill passed by the General Assembly no later than 30 days after the session ends.
Part of the issue with the hospital provider fee is in what to do with the extra money. Speaker of the House Dickey Lee Hullinghorst, a Boulder Democrat, proposed a bill during the session that would use those dollars to fund transportation, education and higher education. According to a fiscal analysis, reclassifying the fee would allow the state to put $155.7 million into those funding priorities in 2016-17.
But now Hickenlooper is attempting to add water as a way to sweeten the deal for Senate Republicans. He told several lawmakers this morning that he has been talking to Cadman about adding water projects to the funding list, although he didn’t say exactly how the money would be used.
Hickenlooper’s offer hasn’t quite tipped Cadman from opposition to support. “I haven’t persuaded him yet. I keep looking for that key,” Hickenlooper said.
The governor made those comments prior to signing a bill to set up a study of the South Platte River between Julesburg and Greeley. That study would look at possible storage solutions to keep millions of acre-feet of water that leave Colorado every year, over and above the amount required by compacts between Colorado and Nebraska.
FromThe Grand Junction Daily Sentinel (Charles Ashby):
Leave it to a Western Slope legislator to tell his colleagues on the Front Range just what they should do when it comes to finding more water for their thirsty cities.
While the South Platte River is miles away from Rep. J. Paul Brown’s southwest Colorado House district, it’s actually as close as the nearest Western Slope stream when it comes to statewide water management.
That’s why the Ignacio Republican introduced HB16-1256, which calls on the Colorado Water Conservation Board to study how much South Platte water has been allowed to flow into Nebraska over what the state’s water compact with the state requires.
Additionally, the bill, which Gov. John Hickenlooper signed into law on Thursday, calls on the board to identify potential sites to create more storage projects no matter how small they might be.
“It’s just important that we not waste water in Colorado anywhere,” Brown said. “I’ve been watching the South Platte for several years. Today, there is about 6,000 cubic feet per second that is flowing out of the state. This study will give us the information we need to go ahead and really get serious about water storage on the South Platte.”
The legislator said he got involved in the issue for obvious reasons: water is a matter of statewide concern and he’s tired of Front Range folks first looking to the Western Slope for more water when there’s still plenty in their own backyard.
He said the board shouldn’t have any troubles doing the study despite its short timetable — it’s due in March — because that state agency already has all the information it needs to complete it.
Brown said the study hadn’t been done previously because of too many competing interests in the South Platte River basin, and prior attempts at looking at more storage projects failed before they could begin.
“They just had their feet knocked out from under them so many times, they just kind of got discouraged, but I think it just took a sheepherder who’s just crazy enough to say we can do this and get the ball rolling,” he said. “When I first started out, they said it was impossible to do, but I just kept after them.”
Once Brown started to make strides in getting people to come to an agreement over doing the study, others quickly stood behind him, including Sen. Jerry Sonnenberg, R-Sterling, who shepherded the bill through the Senate.
Ultimately, it got through the House and Senate, including several committees in each, with only a single no vote.
“The number one concern is we’re going to be 400,000 acre-feet short on the Front Range for the growth they’re expecting,” Brown said. “We’re going to have to come up with that water, but you can’t conserve that much. We’ve got to come up with some alternatives.”
New legislation passed last month in Colorado will allow homeowners to catch water runoff from their rooftops via gutter downspouts flowing into one or two aboveground barrels with lids. The volume of the barrels must not exceed 110 gallons. That water must be used for outdoor irrigation on the property where it is collected. If not the homeowner, a renter must get approval from the owner. If multiple unit buildings, there can be no more than four units. The legislation, HB 16-05 will become law on August 10th of this year.
One of the bill’s House sponsors, CO Representative Daneya Esgar, told The Mountain-Ear, “This common sense bill, simply allows Coloradoans the ability to catch some rain that falls on their roof, and use it to water their gardens. This year we worked hard with the Colorado Farm Bureau, agricultural organizations and others who were nervous about the similar bill last year, to be sure this law would not infringe on anyone’s water rights.”
[…]
The State Engineer must report to the Legislature in 2019 about whether the allowance for this collection of rainwater has “caused any discernible injury to downstream water rights”. It was this language that allayed the concerns of Colorado farmers and helped pave the way for the bill’s passage in April.
Rebecca Martinez, Associate Director of Communications for the Colorado Farm Bureau, told The Mountain-Ear that the “Colorado Farm Bureau is supportive of HB16-1005 because of specific protections that have been added to the bill that haven’t been a part of previously proposed legislation. Last year, HB16-1005’s predecessor bill lacked adequate protection of individuals’ water rights. “Over the course of many discussions, we’ve made it clear that this bill must contain language protecting water right owners and it is imperative that this bill recognize the state’s prior appropriation doctrine,” president of Colorado Farm Bureau, Don Shawcroft, said. “As the language currently stands, the state’s water court system is fully considered and will allow the State Engineer to address injuries to other water rights should they occur in the future.”
Theresa Conley of Conservation Colorado told The Mountain-Ear, “This bill would help citizens better connect to their outdoor water use by seeing how much water they are using, how much water lawns or plants consume, and how much rain we receive. It also increases folks understanding of our prior appropriation system of water law in terms of why we have it and that it can be a flexible, adaptive water rights system that works.”
Conley further explained, “Colorado faces water challenges (drought, damaged rivers, water security), and an informed public is a necessity for any solution to those challenges. Allowing residential use of rain barrels will build a conservation ethic in the populace, foster a deeper connection to water in the state, and will not impact other water users.”
Residents of Nederland could especially reap the benefits of the bill’s aim at water conservation, as the incorporation of barrels for outdoor irrigation would offset the extremely high cost of water within the town.
Governor Hickenlooper signed a rain barrel at the HB16-1005 bill signing ceremony. Photo via @jessica_goad and Twitter.From9News.com (Ryan Haarer):
Starting August 10, if rain falls on your roof, you can keep it. Each household can keep two rain barrels for a total of 110 gallons of water. A study at Colorado State University estimates that could add up to 1,200 gallons a year.
“At first I get worried about hail that would kill my vegetables, but then I am excited about the rain!” said Jessica Goad with Conservation Colorado…
Jessica works for Conservation Colorado which pushed hard to get this legislation passed. It failed last year because of concerns over how such a law would affect Colorado’s complicated water laws.
“The use of residential rain barrels had no impact on users downstream,” she says.
That’s according to a study by Colorado State University. The 1,200 gallons of water you could be capturing a year will not impact other areas. And the law requires further monitoring to ensure rain barrels never have an impact on other water users.
State legislators in Colorado rarely vote unanimously, and when they do it’s usually in support of a pom-pom proclamation such as espousing eternal support for the Denver Broncos or some other feel-good cause.
The Colorado Water Rights Protection Act was approved unanimously this spring before being signed into law April 21 by Gov. John Hickenlooper. The unanimity, however, glosses over strong disagreements.
The Boulder-based law firm that drove the proposal needed three years to get it approved. Then, once it was passed, an environmental group that helped craft the law’s language declined to be interviewed, because it was, in the words of a spokeswoman for Conservation Colorado, “neutral” about what the law says.
Welcome to the wonky, sometimes wacky, world of Colorado water.
This new law is frequently described as a “message.” It tells the federal government that Colorado has sovereignty over all matters involving water appropriations.
The rub lies in water on federal lands. A majority of Colorado’s 14 million acre-feet of water originates on federal lands, which cover near 36 percent of the state’s land mass. Should the federal land agencies have just a little say say-so in how diversions affect ecosystem functions?
Bypass flows have caused the quiet argument. In some cases, the Forest Service requires small amounts of water remain in creeks and rivers when issuing special-use permits or rights of way for diversion infrastructure such as dams, ditches, and pipes. The Forest Service cites the need for resource protection. Bugs need water, and fish needs bugs. They also need water, too. Most creatures do.
Fish in the Fraser River have struggled because there was too little water for the riparian area that had been created by natural flows. Segments have now been mechanically manipulated to be more narrow. Photo/Allen Best.
Near Winter Park, bypass requirements govern diversions from Vasquez and St. Louis creeks by Denver Water. Another requirement mandates bypass flows from Strontia Springs Dam, on the South Platte River southwest of Denver. Still another involves a hydroelectric facility near Georgetown.
The authority, however, lies in contested territory. In 2004, a district court judge agreed with Trout Unlimited that the Forest Service not only has bypass flow authority but also responsibility in some cases to use that authority. A higher federal court took on the case, but ruled on procedural issues, not the substance of the case.
But environmental groups stood by quietly when the Forest Service in 2011 said that ski areas, as a condition of their permits to operate on federal land, had to transfer their water rights to the agency. The reasoning was that water is a critical component of ski area operations, such as for snowmaking. The agency wanted the water rights to be attached to the special-use permit.
That’s really no different than Colorado’s requirement of state school trust lands leased for agriculture. These are the lands—a section in each township—given by the federal government to Colorado at statehood, in 1876, to be managed for income to benefit public schools. There are now about three million acres. Water rights used in agriculture must be transferred to the state when the land is leased.
The ski industry loudly opposed the Forest Service requirement. If a ski area figures out how to make snow with less water, for example, why shouldn’t it be able to move the water elsewhere? Too, some water used at ski areas comes from elsewhere. Both Aspen and Vail, for example, use water that originates in rivers at their bases. Finally, late last year, the Forest Service threw in the towel.
The Forest Service also retreated from a directive declaring that the agency has control over groundwater underlying its lands.
The dividing line
Glenn Porzak, a Boulder-based water attorney who was behind the new law, is adamant that the federal government has no role in determining water allocations in Colorado. “The only way you own that water is if you go through (state) water court,” says Porzak, who has for decades represented many ski areas and other water agencies in the Vail-Summit County area.
Western Resource Advocates, a leading environmental organization, was unwilling to stand by the Forest Service in the tiff with ski areas. Rob Harris, the group’s senior staff attorney, says the Forest Service over-reached, likening it to “poking them in the eye a little bit.”
But the group stood firm that it would oppose any state water rights law that rejected bypass flow authority. “We view the legal question as being well settled,” says Harris, pointing to the 2004 decision by the federal district court. “Most people would be depressed if they went to their favorite tract of national forest and found that the creek was dry,” he adds.
Rep. KC Becker oversaw the compromise. A Democrat from Boulder, her district has key parties on both side of the issue as well as the Eldora, Loveland and Winter Park ski areas. It also includes Grand County. Along with Summit and Eagle counties, it bears the brunt of transmountain diversions from the Western Slope. The three counties said in March that they were ready to oppose the bill if it constricted their ability to impose conditions on diversions. Language favored by the state attorney general’s office would have potentially allowed water diverters to sue Grand County for “takings” of property, said the county’s water attorney, David Taussig.
Leaving water in creeks at certain times and situations was integral to Grand County’s support of Denver’s stepped-up diversions through the Moffat Tunnel to Gross Reservoir. The concept, supported by Denver, is that when water is diverted is equally important to how much. In hot, dry weather, added diversions could leave the Fraser River too shallow and warm for fish.
What does it accomplish?
Even in headwaters counties, some heralded the new law. Rick Sackbauer, who chairs the board of the Vail-based Eagle River Water and Sanitation District, called it a “great victory for water right holders in the Eagle River valley and throughout Colorado.”
In early August 2012, this is what the South Platte River looked like north of downtown Denver, near the Cherokee power plant. Photo/Allen Best .
Greg Walcher, former director of the state’s Department of Natural Resources under Gov. Bill Owens, said the law “signals the state attorney general, and state agencies, that they are not only cleared, but encouraged, to take legal action when Colorado water rights are threatened by federal overreach.”
The law’s one shortcoming, said Walcher in his op/ed in the Grand Junction Sentinel, was that it was “watered down” by the neutral language about bypass flows.
That neutrality is why Becker, the bill’s primary sponsor, thinks environmental groups should be happy with the law, too. Not all of them are, though.
“My guess is that no one on the D(emocrat) side wanted any daylight between them and the citizens of the state on this, no matter how they feel about it deep down,” said one knowledgeable individual, concerned about job security. “The feds are everyone’s favorite whipping boy on just about everything, and especially water.”
“All true,” said Chris Treese, legislative affairs director for the Colorado River Water Conservation District, when he was read these words.
Treese doubts Colorado’s message law will resolve anything. Tension between the state and the federal government over water will remain. “This will continue to be an issue and a question of perspective.”
An angler in the Roaring Fork River in Aspen in June 2014. Photo/Allen Best
The bigger issue is the sufficiency of flows for environmental purposes. Laws adopted in the early 1970s have resulted in water rights called instream flows for environmental protection. They serve the same purpose as the federal government’s bypass flows, argues Porzak, the attorney who works on behalf of ski area interests.
Others think far more must be done. In the dry summer of 2012, for example, the South Platte River was reduced to small puddles downstream from diversions for electrical production and farm ditches. The Yampa River through Steamboat Springs looked no better until an agreement was struck that July to return flows.
But linking arms with federal agencies to secure water is always going to be looked upon with suspicion in Colorado. If the Broncos are the state’s de facto religion, state administration under the doctrine of prior appropriation ranks close behind. Even the water that flows out of the Eisenhower Tunnel has an owner and a priority date adjudicated by a state court.
It’s why legislators took so many years to pass the law making it legal to put a coffee can under your back porch to collect dripping rain. The rain barrels were a matter of principle.
On this day a year from now, Coloradans will get to celebrate Colorado Public Lands Day, thanks to a bill that squeaked through the gridlocked legislature this year.
But in terms of better protecting Colorado’s public lands, that hat-tip is about all that got accomplished this legislative session…
And like most discussions of the increasingly politicized issue of public lands in the West, the commemorative day turned into a mountain-sized argument. Kerry Donovan, a Democratic state senator from Vail, introduced Senate Bill 21 during the first week of the four-month session in January, and it passed during the session’s last week in May.
Amendments in the legislature larded up the bill with partisanship and acrimony. Finally, Sen. Jerry Sonnenberg, a strong conservative from Sterling, brokered a solution in a committee tasked to find a compromise.
The committee stripped out all the added amendments and preserved just the day and its name…
House Democrats killed another Republican bill this year that would have given local and state law enforcement more authority over federally managed lands…
In a West Vail diner this week, cradled by the high, green shoulders of the White River National Forest, Donovan reflected on the work that led to Hickenlooper’s signing her bill into law, making the third Saturday in May each year Colorado Public Lands Day…
Over eggs benedict and coffee, Donovan pulled out a letter her grandfather, Bill Mounsey, wrote to Gov. Dick Lamm in 1976. He compared the growing public push to preserve public lands to the American Revolution. Mounsey helped chart the boundaries for the Eagle’s Nest, the Flat Tops and the Weminuche wilderness areas for The Wilderness Society.
Her parents successfully sued the U.S. Forest Service in the early 1970s to prevent a timber sale in what would become the Eagle’s Nest Wilderness Area, protections that were pending before Congress.
To Donovan and countless Coloradans, public lands are a lot more than trees and dirt — they’re a fight worth having.
“They’re one of the most beautiful examples of democracy, right?” she said. “It doesn’t matter what your station in life is or how much money you make or what your background is or anything. We all have the same ability to go to a trailhead, walk out and have the experience of enjoying those lands.”
Sonnenberg is in the camp that public-lands advocates such as Donovan and Scott Braden of Conservation Colorado fear most. He supports more state control over federal lands to allow more use of the economic resources and more access for the public. Sonnenberg thinks the federal government does a horrible job of it at Coloradans’ expense, citing wildfire prevention, pest control and over-regulation.
The cost for Colorado to control federal lands could run into the hundreds of millions of dollars each year, but Sonnenberg said the state could swing it by allowing more use with responsible management, the way it manages state lands.
“I’m afraid the issue has become too polarized on both sides,” he said this week. “We need to find something in the middle and cut all the rhetoric on both sides, to get down to what the issues are. Public Lands Day came together at the end, because people were willing to do that.”
[…]
“It’s easy to go inflammatory on this [state takeover of federal lands],” Donovan said. “Will the Maroon Bells be sold off? No. We’re not going to sell off these incredible vistas and the most valuable assets. But would public lands across the state start getting chunked off without a lot of people being able to keep track of it? Absolutely. And who’s going to be the highest bidder? Not some land-conservation nonprofit.”
2016 was a busy session for the Colorado legislature and conservationists. Western Resource Advocates and our partners had tremendous success shaping several bills that affect protection of Colorado’s rivers and lakes.
2016 was a busy session for the Colorado legislature and conservationists. Western Resource Advocates and our partners had tremendous success shaping several bills that affect protection of Colorado’s rivers and lakes. Partnerships we solidified at the Colorado state Capitol this year will help in 2017, where we hope many proposals from Colorado’s Water Plan will move forward to advance water conservation and water recycling. A recap of key 2016 bills includes:
Rain Barrels Are Legal!! HB 16-1005 will legalize the use of residential rain barrels for all Coloradans. The bill received a rainfall of votes in the House and Senate, passing 61-3 and 27-6, respectively. Governor John Hickenlooper signed the bill at the Governor’s Mansion on May 12th. WRA was involved in crafting bill language, lining up supporters, testifying in committee, and pushing media coverage. Legalizing rain barrel use is part of our work, for more than a dozen years, to accelerate urban conservation as the cheapest, fastest, and most flexible water supply. Legalizing rain barrels will help build the water conservation ethic we need for all Colorado residents to implement Colorado’s Water Plan and its landmark urban water conservation goal.
Minimizing Water Loss: HB 16-1283 set out to decrease the water lost by municipal water providers from leaky pipes and faulty water meters. WRA worked on bill language, consulted with sponsors, and created legislative fact sheets. A concerted water loss management effort enabled through this bill could have added 20,000 acre-feet to our state’s water supplies each year, enough water for 200,000 people. Improved efficiency is a cornerstone of Colorado’s Water Plan, and water loss reduction is one of the single most effective efficiency measures we can undertake. Unfortunately, this bill did not pass out of committee. We will work to advance this bill next year after further refinements from a variety of stakeholders.
Protecting Flows for Fish: HB 16-1109—which addressed conflicts between state water law and certain proposed federal policies—passed after WRA Staff Attorney Rob Harris and our partners successfully lobbied for inclusion of language to safeguard existing laws that protect fisheries. We preserved “bypass flows,” an aquatic habitat standard that ensures enough water is kept in rivers for fish to survive. Our defensive efforts helped keep a political squabble between certain land users and federal agencies from accidentally hurting fish and other wildlife.
Adding Flexibility in Water Management to Benefit the Environment: Mixed Results: At least two bills aimed at increasing the flexibility of water management to achieve community, environmental and agricultural goals had mixed success. HB 16-1228, to enable temporary transfers of irrigation water rights to cities or other users, passed and awaits the Governor’s signature. This allows Front Range agricultural users to retain their water rights but share some of their water with other users in times of need. HB-1392, proposing to establish a statewide water bank – which would have enabled sharing water inside river basins and potentially dedicating some water for streams themselves – died in committee. WRA engaged with sponsors on both bills to help create beneficial alternative water transfer mechanisms, to enable providing water for the environment and recreation, while ensuring that the legislation did not create loopholes for unneeded and environmentally damaging water projects.
Legislative advocacy is essential. The nitty-gritty work at the Capitol is where aspirations meet reality and where hard won gains for our rivers and lakes must be defended. We are proud that we defended key protections and helped advance a better water future for all Coloradans.
From the Loveland Reporter-Herald (Pamela Johnson):
Colorado residents will be able to collect rainwater from their roofs to use in gardens and yards when a new law takes effect on Aug. 10.
Water officials expect that less than 10 percent of residents will use rain barrels, and each home is allowed to have two barrels totaling 110 gallons of water.
The amount is small enough that it should not cause any measurable drops in the water feeding into rivers to supply cities, farms and businesses locally and downstream, said Reagan Waskom, director of the Colorado Water Institute.
It won’t hurt utilities and those who hold water rights, and it will only help residents by supplementing the water available for their yards and promoting conservation, he said…
Residents likely will have to supplement their rain barrel water for their yards and gardens. However, the amount needed varies upon the size of yard and the type of vegetation, for example native low-water grasses versus a typical lawn.
Under the new law, each household can have two barrels to collect water from rain gutters or off the roof. That water must be used for outdoor landscaping, such as gardens or yards, and cannot be used indoors or for purposes such as filling a hot tub, according to guidelines from the Colorado State University Extension Service.
“You need a surface you can gather it from,” said Waskom, and the new state law specifies that the water must come from a rooftop.
The law also requires that the rain barrel have a lid that can be sealed to reduce evaporation but also to prevent mosquitoes from accessing and breeding in the standing water.
Health officials also urge people to completely drain and clean the barrel weekly or at least every month also to prevent a mosquito hotbed.
Home supply stores sell granules, called “Mosquito Dunkers” or “BTI granules,” that can be used to prevent any of the pests’ eggs from hatching, noted Katie O’Donnell, spokeswoman for the Larimer County Department of Health. These are commonly used in livestock water tanks and will not hurt wildlife or plants, she noted…
Colorado is the last western state to adopt a law that allows residents to collect rain water for their yards because of the demands upon water and the complex water rights system in place, Waskom noted. Those who hold the water rights worried that they would lose precious water supply and lobbied against the new law to prevent that.
However, water officials showed that the small amount of water diverted off roofs, which will likely be from a small number of homes, will not impact that water supply, according to Waskom.
And larger utility providers testified that the use of rain barrels could positively promote conservation.
Waskom added, “Hopefully it will make us more water conscious.”
On Thursday May 12, Western Resource Advocates joined others to celebrate HB16-1005, legalizing the use of rain barrels, becoming law.
From Western Resource Advocates (Jon Goldin-Dubois):
On Thursday May 12, Western Resource Advocates joined Colorado Governor John Hickenlooper, James Eklund, Director of the Colorado Water Conservation Board, our colleagues at Conservation Colorado, Denver Water, the Colorado Farm Bureau and many others to celebrate HB16-1005, legalizing the use of rain barrels, becoming law. There was a party, there were speeches, there were toasts in celebration – and several rain barrels were autographed by the Governor. I was quoted as saying, “On this sunny day, I’m dancing in the rain!”
But I know a number of my friends and colleagues scratched their heads at this news. I have heard some say that rain barrels and this legislative win were not very important. I want to tell you why I disagree.
First, our opportunities to win legislative victories, in any state, on any issue, are too few and too far between. Getting legislation passed, of any kind, in our divided Western state legislatures is tough to say the least. Getting leaders to work across the aisle and achieve victories for both parties is a very difficult task. But this win was achieved in Colorado to gain final passage of rain barrel legalization after two years of effort.
Second, don’t underestimate the power of symbolism. Rain barrels became a tangible symbol of work to fix a state law that was contrary to our desired water future. Everyone wondered why rain barrels were illegal in Colorado – and when they learned that it was because there are water interests who feared this would begin to unravel water laws from the 1800s, it became clear this was a battle over more than just rain barrels. This was a battle to get vested water holders to open up and consider new ways of doing business that help us advance water conservation. These interests are powerful and can be suspicious of change, and they successfully killed the bill last year. Passing the bill this year is a signal that Coloradans representing a variety of interests are committed to finding new, innovative strategies to manage our water resources.
Third, Western Resource Advocates and Conservation Colorado created a campaign that garnered interest from the press, brought attention to the issue, engaged citizens, and focused policy makers on an issue that, until two years ago, they hadn’t even considered. This was a well-organized campaign that took hundreds of hours of time educating reporters, editors, citizens and legislators. There were videos, tweets, blogs, and action alerts. This campaign represented what energetic commitment by the conservation community can achieve in the face of opposition.
Finally, legalizing rain barrels illustrates that we can create our own future and be the catalyst for change. Theresa Conley, Water Advocate at Conservation Colorado, relayed to me a story of a conversation two years ago where Western Resource Advocates and Conservation Colorado were dreaming up what we could possibly do to advance wiser water management in Colorado in a divided legislature. During that conversation, our own Drew Beckwith said, “What about rain barrels?” There are not many people out there who can claim an idea that becomes a concept, a plan, legislation, and then a law.
I am so proud of our team, led by Drew, Bart Miller, and Maren McLaughlin-Klotz, who created amazing educational opportunities, captured people’s imagination, and changed a bad state law. I am grateful to State Representatives Daneya Esgar and Jessie Danielson and State Senator Michael Merrifield for leading on this issue. The Governor has once again shown he is a water leader and his support made the moment of “Now it’s Law” possible. I am also so proud of you and all our donors and supporters who participated in this effort and made this possible.
We all should be very proud of our work together to legalize rain barrels. I certainly am. And we will and should rightfully claim this victory with our partners at Conservation Colorado, in particular the great work of Theresa Conley, Becky Long, and Kristin Green. Yes, there is much more work needed to conserve water, advance water reuse, and to further agricultural-urban water sharing — but this victory shows what we can do when we are committed and strategic, and when we work together to advance our vision for the future. Onward to implementing the Colorado Water Plan!
Governor Hickenlooper signed a rain barrel at the HB16-1005 bill signing ceremony. Photo via @jessica_goad and Twitter.
Colorado’s longtime ban on residential rain barrels has come to an end. Now most homeowners in the state are allowed to collect precipitation for later outdoor use.
Gov. John Hickenlooper recently signed House Bill 1005, which allows a maximum of two rain barrels — with a combined capacity of 110 gallons — are allowed at each household. The measure is to take effect on Aug. 10.
Rainwater collection, also called rainwater “harvesting,” is the process of capturing, storing and directing rainwater runoff and putting it to use. Water from roof gutter downspouts that is directed onto landscaped areas is not regarded as rainwater harvesting under this legislation.
The Colorado Legislature passed the bill last month after previously rejecting the measure in past sessions over concerns that household rain barrels would take water from the supply available to agriculture and other water-rights holders.
But a study conducted by the Colorado Stormwater Center, housed within the Department of Civil and Environmental Engineering at Colorado State University, showed otherwise. Nearly all of the water would be absorbed in the ground by the downspout or in the ground in the garden, the CSU analysis indicated.
“We do not think any changes to the water cycle could be accurately quantified or measured,” said Chris Olson, a researcher and program manager at the Stormwater Center. “The water is going to be infiltrated or evaporated. The only difference is the timing, a day, maybe two, before the rain barrel is emptied.”
Colorado has been the only state with an outright ban on residential rain barrels and one of just four states that restrict rainwater harvesting.
Water law experts say rain barrels are only technically illegal, because proving they injure the water rights of other users is nearly impossible.
Collection systems
Collected rainwater may be used to irrigate outdoor lawns, plants or gardens. Untreated rainwater collected from roofs is not safe to drink.
Any container capable of collecting the rain shedding from a roof or patio can be used as a rainwater harvesting system. To comply with Colorado water law, the container must be equipped with a sealable lid. Rainwater collection systems vary from simple and inexpensive to complex and costly.
Typically, rooftop rainwater collection systems are simple — gutters, downspouts, and storage containers. Inexpensive rainwater storage systems commonly make use of an above-ground container such as a barrel or plastic tank with a lid to reduce evaporation and bar access for mosquitoes to breed. More sophisticated systems have “first flush” diverters that are recommended to exclude capture of the initial rain that might carry impurities from the roof.
Rain barrel use under HB 1005
There are several restrictions that are important to follow in order to use rain barrels legally in Colorado. These restrictions differ depending on your residential situation.
Under House Bill 1005, rain barrels can only be installed at single-family households and multi-family households with four or fewer units. A maximum of two rain barrels can be used at each household and the combined storage of the two rain barrels cannot exceed 110 gallons. Rain barrels can only be used to capture rainwater from rooftop downspouts and the captured rainwater must be used to water outdoor lawns, plants and/or gardens on the same property from which the rainwater was captured. Rain barrel water cannot be used for drinking or other indoor water uses.
“The capture and use of rainwater using rain barrels does not constitute a water right,” said Reagan Waskom, director of the Colorado Water Institute, part of CSU’s Office of Engagement. “HB 1005 includes language that could result in the State Engineer curtailing the use of individual rain barrels if a water-right holder can prove that those rain barrels have impacted their ability to receive the water that they are entitled to by virtue of their water right.”
Colorado State University Extension has created a fact sheet with additional details on rainwater harvesting.
It’s now legal for residents to collect rain water and use it to water their gardens — something most probably haven’t thought twice about.
Before Gov. John Hickenlooper signed a rain barrel bill into law Thursday, only well owners were able to utilize rain barrels legally. A similar bill died in the Legislature last year, but with the governor’s signature on House Bill 1005, anyone can collect rainwater in two 55-gallon barrels.
The bill is only a small aspect to the larger picture of water rights in Colorado — which rain barrel owners are not guaranteed.
The bill’s passage also means — at least for now — a pause on discussion around major changes to Colorado’s water laws. There have only been grumblings and some failed attempts to put water laws to a vote, but the slight change of legalizing of rain barrels is one that puts the conversation to rest — for now.
“For the first time we really have a situation in place where we can account for and make sure water rights are protected,” said Marc Arnusch, a farmer in Keenesburg.
Colorado’s water laws, in short give water rights to people on a first-come, first-served basis. The priority goes to senior water holders — those who got rights to use the water first. The trickle-down system puts junior rights holders are the lowest on the totem pole when it comes to using and taking water sources. But if the junior water rights holder takes more then their share, the senior holder can hold them responsible for damages to the supply.
That’s where the rain barrel discussion fits in. Even with rain water coming from clouds, Colorado’s water supplies rely on runoff water from storms. Rain barrel collections could reduce the amount of runoff water, but only when a large amount of water is collected from rain barrel owners.
Hesitation during the discussion of the bill was to protect the rights of the junior water rights holder. Legislators wanted to make sure junior holders weren’t held responsible for less available water due to a diversion into rain barrels.
Colorado State University researchers studied the effect rain barrels collections might have on downstream water from the rain and found there would be little, if any, change. This also plays into how many rain barrels will, realistically, be used. Arnusch said urban residents will most likely use the barrels, and Northern Water’s Brian Werner said a good utilization of the barrels would be if 10-15 percent of Colorado residents actually used the barrels. But even that might take time.
The CSU study didn’t convince everyone, though. Sen. Jerry Sonnenberg, R-Sterling, was one of three in the Senate Agriculture, Natural Resources and Energy committee to vote against the bill. His disagreement came from a lack of solutions to make sure the barrels wouldn’t take water away from those who own it and how to keep the rights in check. There was talk of a statute that would hold rain barrel owners responsible if there was a deficit from water rights owners, but there was no consensus, as the CSU study said there would be little, if any noticeable change in runoff water.
Even though the study said there wouldn’t be much of a change, statutes to hold barrel owners responsible in case of a reduction were rejected.
“If there isn’t an impact, why would they be worried about a statue?” Sonnenberg said in March.
But there was a checks and balance system put in place in which state officials can check to see — if rain barrels prevent water owners from getting their full share — how that can be fixed and changed. Werner said the chance for a revisit, along with the results from the CSU study was a large reason why the bill passed this year, unlike past sessions.
“If everyone were to (buy barrels) there are the checks and balances in there so somebody can go back there and look on a regular basis to see if there is, indeed, an impact,” Werner said.
The impact comes down to whether there will be enough water when rain barrels are used. With water rights remaining as they are, Arnusch said the bill is a step in the right direction to keep the water rights structure as is.
The biggest overhaul talks have been about switching to a public trust doctrine system. Arnusch is on the Ground Water Commission for the Colorado Division of Water Resources and said talks about the public trust doctrine system would still be priority-based, but the priority would go to wherever need is seen, rather than water ownership. That could mean years with less agricultural priority, which is why farmers and ranchers oppose the system.
“If the public trust doctrine were to go into effect in Colorado, that would be just a catastrophe for agriculture,” he said.
While a change to the public trust doctrine isn’t favorable to agriculture, Arnusch said it’s still important to evaluate and make reasonable changes within the existing water use system. Rain barrels were one of those changes. Now, the micro-storage options have a place in Colorado’s complex priority system, he said.
But there is a difference between the use of rain barrels and who owns that water.
“At the end of the day, a rooftop doesn’t entitle you to a water right,” Arnusch said.
Colorado House and Senate leaders found common ground on two CCGA-supported state bills — House Bill 16-1228 and House Bill 16-1256 — that had each passed through the 2016 Colorado Legislative Session in recent weeks, but came out of the two chambers in varying versions.
With concurrence, though, from both Senate and House leaders in more recent days, both bills are on their way to the governor for his signature.
The 2016 Colorado Legislative Session ended at midnight on May 11.
House Bill 16-1228, “Ag Protection Water Right Transfer Mechanism,” would authorize owners of ag water rights to seek change-in-use decrees, allowing the transfer of up to 50 percent of the water subject to that water right, to any beneficial use for renewable one-year periods, without designating the specific beneficial use, if the owner obtains a substitute water supply plan, and other conditions are met.
House Bill 16-1256, “South Platte Water Storage Study,” would require the state to conduct or commission a study of the South Platte River Basin to determine, for each of the previous 20 years, the amount of water that has been delivered to Nebraska in excess of what’s required under compact. The study must also include locations that have been identified as possible sites for new reservoirs within the South Platte River Basin, between Greeley and Julesburg.
Activities like watering the lawn and thirsty flower beds don’t require treated water from the tap. Until this week, the state technically could have fined Broderick $500 for his system.
The new law, which takes effect in August, allows homeowners to collect as much as 110 gallons of rain in up to two barrels.
‘Legalize It’
The state hasn’t issued fines in recent years. So why even bother changing the law?
Democratic Rep. Jessie Danielson of Wheatridge says in the face of climate change, drought and a taxed water supply system, rain barrels are an important conservation tool.
“It will tie the consumer to their water usage a lot more closely,” said Danielson.
The bill was first introduced in 2015 but lacked support from the agricultural community and some lawmakers. However, it struck a chord with many homeowners this year. Danielson said as she posted Facebook updates about the bill during the session, those dispatches got more responses than any other posts.
One person was so devoted to the cause they started selling t-shirts.
“They put the words ‘legalize it’ at the top, and instead of it being some marijuana-themed t-shirt it was a picture of a rain barrel,” Danielson said. “This is a fun, important environmental issue that just makes sense to people.”
Drought and water supply concerns have been a catalyst for other state legislatures in Texas, Utah and California to take up rainwater collection.
Some western cities like Los Angeles even offer rebates on equipment.
But in Colorado, where drought is still fresh on many farmers’ minds, getting the bill passed wasn’t easy.
Getting From ‘No’ To ‘Yes’
After the bill was introduced, one of the largest opponents was the Colorado Farm Bureau…
“Rain barrels were kind of looked at as the red-headed step child in a sense,” said Marc Arnusch, a farmer and member of the Colorado Farm Bureau board.
Arnusch said amendments to the 2016 version of the bill guaranteed that rain barrels wouldn’t interfere with farmers’ water rights. The final bill literally says “a rain barrel does not constitute a water right.”
The law will also require the state engineer to track adoption and usage among homeowners. That was a big selling point for Arnusch.
“We need to start preaching heavily about conservation and using water intelligently,” said Arnusch. “And that starts quite frankly in the urban areas of our state.”
Debate and research on rainwater collection stretches back almost a decade in the state. Colorado launched a small-scale study back in 2007. It found that 97 percent of the rainwater in Douglas County is lost to evaporation and vegetation. The study was a catalyst for a 2009 law that gave well owners the right to collect rain water.
In Colorado, the debate may be complicated, but rain barrel owner Aaron Broderick said owning a rain barrel is pretty simple. It takes an afternoon to set up and it can cost under $100. The end result will be a cheaper water bill.
“The thing that’s interesting is that it really isn’t much of an inconvenience,” he said.
The true test will be whether the law causes an inconvenience for water rights holders in the near future. The state engineer’s office is expected to deliver its first report on rain barrels sometime in 2019.
After two years and a downpour of controversy, Coloradans soon will be allowed to use barrels to collect rain that falls from their roofs…
Starting Aug. 10, Coloradans will be allowed to use up to two 55-gallon barrels, which cost about $100 on average.
“They promote education – pay attention to water and how it’s used – and they also promote stewardship,” Hickenlooper said of the barrels, signing the legislation in the backyard of the Governor’s Residence at Boettcher Mansion in Denver.
While the legislation seemed obvious to many observers, it struggled through the Legislature, failing last year, before picking up steam this year.
What held it back was fears that rain barrels would erode the state’s prior appropriations system, which grants water rights to the first person to take water from an aquifer or river, despite residential proximity.
Several amendments this year helped garner support from factions that ardently fight for water rights, including the Colorado Farm Bureau.
The law allows water officials to curtail use of barrels if injury to water rights is found. The law also states that using a rain barrel is not a water right, and requires the state engineer to evaluate if the use of rain barrels impacts water rights across the state.
Sen. Ellen Roberts, R-Durango, helped push the measure along over the past two years by garnering support in the Republican-controlled Senate.
“We don’t want to impact anyone’s water rights. We just want to make sure that we aren’t the only state in the union where this was illegal,” said Rep. Daneya Esgar, D-Pueblo, a co-sponsor of the bill.
Sen. Mike Merrifield, D-Colorado Springs, added: “It gives urbanites a more personal and intimate connection with the complicated water system in Colorado.”
Rep. Jessie Danielson, D-Wheat Ridge, pointed out that it was remarkable to pass a controversial piece of legislation during a contentious legislative session.
“We keep hearing that there’s this gridlock and that we’re not able to get anything done in a hyper-partisan time,” Danielson said. “This bill is an example of working across the aisle.”
HB16-1005 signing ceremony photo via @ConservationCO
Colorado Governor John Hickenlooper this afternoon signed H.B. 1005, a bill legalizing the use of residential rain barrels in Colorado.
Conservation Colorado Executive Director Pete Maysmith and Western Resource Advocates President Jon Goldin-Dubois made the following comments:
This is a victory for Coloradans who care about their state’s incredible rivers, lakes, streams, and waters. Rain barrels are an important educational tool and a great first step toward conservation and increasing awareness about the water challenges facing Colorado. Water conservation is the cheapest, fastest, and most flexible water strategy we have to addressing these challenges. Moving forward, we are ready to work with the Hickenlooper administration, our legislature, and private citizens to implement more water conservation policies, starting with the statewide water conservation goal outlined in last year’s landmark Colorado Water Plan.
Pete Maysmith, Conservation Colorado
On this bright sunny day, we are dancing in the rain!! We applaud Governor Hickenlooper and Representatives Esgar and Danielson and Senator Merrifield for their leadership in passing HB 16-1005, legalizing rain barrels. Now Colorado joins other states across the nation in ensuring everyone can use this common-sense tool to help water their gardens. The entire West is facing water challenges with a growing population, limited water supplies, and a changing climate. We need increased water conservation to help meet these challenges. Someone with a rain barrel develops a better awareness of the water cycle, leading to a needed increased water conservation ethic. We look forward to working with state leaders to build on this step and implement our new Colorado Water Plan. This legislation shows what we can do when we all work together.
Jon Goldin-Dubois, Western Resource Advocates
For more photos and a video of the event, please contact Jessica Goad at jessica@conservationco.org
“We just want to make sure we’re not the only state in the union where this is illegal. I think that’s why it gained so much national attention, even international attention,” said Rep. Daneya Esgar, a Democrat representing Pueblo.
The new law allows residents to collect and store up to 110 gallons of rainwater as long as you put it back in the ground on your property.
“We thought this was just a good Colorado common sense measure,” said Rep. Jessie Danielson, a Democrat representing Wheat Ridge. “You could take water from the roof, collect it in a barrel and water your tomato plants. Seems straight forward, right? But it wasn’t.”
Danielson’s father is a farmer in Weld County. She said lawmakers initially met resistance from ranchers who worried that allowing people to store water for use when it’s dry would mean less water and runoff downstream.
“We did come to an agreement, one that assures that agriculture and other water users across the state will not have any injury,” said Danielson.
The Colorado Farm Bureau supported the measure. Other supporters say the bill is about conservation and education about the state’s mostprecious natural resource.
“As we move into the implementation of Colorado’s water plan we know that conservation is the cheapest, most effective approach we can do,” said Hickenlooper.
Esgar was one of the first to put the new law into practice, “My wife actually purchased me a rain barrel, although I won’t say it’s been filled yet.”
Sponsors of the bill struck a compromise with farmers and ranchers, adding a provision to the bill that says if there’s any proof rain barrels are hurting downstream users, the state engineer can curtail the usage of them.
Here’s the release from Conservation Colorado (Jessica Goad):
The Colorado state legislature on Friday night passed a bill establishing the third Saturday in May as a holiday to celebrate, as the bill’s summary states, “the significant contributions that national, state, and local public lands within Colorado make to wildlife, recreation, the economy, and to Coloradans’ quality of life.” The bill passed with bipartisan support, with a 36-29 vote in the House and a 25-8 vote in the Senate. It is now headed to the governor’s desk.
“Colorado is a national leader when it comes to conservation issues, and our support for public lands is no exception,” said Scott Braden, Wilderness and Public Lands Advocate at Conservation Colorado. “People come from far and wide to visit our mountains, deserts, forests, and grasslands, and for that they deserve to be celebrated.”
The effort to establish a Public Lands Day in Colorado was put forth, in part, as a contrast to response to extreme land seizure efforts such as the weeks-long siege of the Malheur National Wildlife Refuge by armed militants in January.
“Coloradans want to celebrate, not seize our national public lands,” continued Braden. “We have no patience for extremist attempts to privatize or undermine our shared outdoor heritage. We hope that our efforts here in Colorado send a message to the Bundys and their political sympathizers: we are going lead the West in turning the tide away from their dangerous agenda.”
More details:
Colorado has 24 million acres of national public lands, including mountains, deserts, forests, and grasslands.
59 percent of Colorado voters oppose efforts to turn national public lands over to the state.
The outdoor recreation economy generates $13.2 billion per year and supports 125,000 direct jobs in Colorado.
FromThe Colorado Independent (Marianne Woodland) via The Sterling Journal-Advocate:
Two bills that would begin work on the state’s water plan are moving through the legislature in the waning days of the 2016 session.
The first is an annual bill that funds water projects under the direction of the Colorado Water Conservation Board. Among the projects listed in the 2016 measure:
• $200,000 to conduct a study on underground water storage along the Front Range. That study is contained in a bill that’s awaiting a final vote in the Senate. The measure, House Bill 16-1256, looks at water storage on the South Platte, and could include above-ground storage as well. James Eklund, who heads the Colorado Water Conservation Board, told lawmakers earlier this session that they could use existing data to do much of that study.
• $1 million to continue the statewide water supply initiative. Known as SWSI (pronounced SWAY-sea), the initiative, launched in 2010, developed a study that revealed the state would be short 1 million acre-feet of water by 2050. As part of the statewide water plan, the water conservation board pledged to update the 2010 study within the next year.
A second bill, Senate Bill 16-200, would create a position in the governor’s office to act as a liaison between local, state and federal agencies on water project permits for storage, hydroelectric facilities, diversions and more. The hope is the position would decrease the amount of time it takes to get state and federal permits. The position would be short-term, to end by September 2019.
The bill, which was introduced last week, won unanimous approval in the Senate Friday. Sen. Jerry Sonnenberg, R-Sterling, is sponsoring it in the Senate; Rep. Ed Vigil of Alamosa, a Democrat who chairs the House Agriculture, Livestock and Natural Resources Committee, will be its House sponsor. The bill is supported by Gov. John Hickenlooper, the Colorado Water Conservation Board and several other state agencies, according to Sonnenberg.
Hickenlooper acknowledged the problems with permitting during a news conference Wednesday. He said the Obama administration is open to shortening some of the processes around infrastructure, including water. Some of it is red tape, Hickenlooper said, and some of it is relevant process. The question becomes whether there’s a way to separate out the red tape from appropriate processes, and whether the state needs another person to do that. [ed. emphasis mine]
While Hickenlooper said he is still trying to find ways to eliminate positions, he would defer to the water conservation board and the basin roundtable groups as to whether they have the resources to handle that on their own or if another person is needed to manage that.
It’s not just a time constraint, Hickenlooper said. When the permitting process is extended, the costs climb along with it.
[Scott Tietmeyer], who has been involved in a water dispute since the early 2000s, said the future of farming in northern and eastern Colorado is water, but with farmers going bankrupt to defend it, that future is getting drier. For more than a decade, Tietmeyer and other farmers in his area have fought to protect their water rights. But protecting groundwater can be a pricey endeavor.
This year, Colorado Reps. Edward Vigil, D-Fort Garland, and Don Coram, R-Montrose, introduced House Bill 1337 to address this issue. The bill would make it so no new evidence could be introduced at appeals.
The way the system is set up, at each level of appeals in a water hearing, new evidence can be presented. This makes it so farmers, ranchers and other water rights holders have to pay for new engineering, research and legal defense of new evidence at every step of the process, because either party in the lawsuit can withhold key pieces of their argument to improve the likelihood of a win after an appeal.
Sen. John Cooke, R-Greeley, planned to vote for the bill on the Senate floor because in every other kind of trial, the same evidence has to be used at an appeal that is used at an initial hearing.
The bill passed the Colorado House of Representatives 60-5, but it was killed in the Senate Judiciary Committee last week. A similar bill was killed last year as well.
The bill would have helped farmers and ranchers in situations similar to Tietmeyer’s.
Fourteen years ago, Tietmeyer and several other famers in the Upper Crow Creek River Basin were told their groundwater pumps caused or could cause surface water loss for a senior water rights holder. This complaint started a legal process that’s still going today.
Despite the first hearing ruling going in favor of Tietmeyer and the other farmers, the senior water rights holder appealed the case all the way to the Colorado Supreme Court, which ruled that Tietmeyer and the others would have to yield to the senior water rights holders if they could prove their use of the water would suffer.
That ruling was in 2006. The decade since has been filled with research and legal battles between the surface and groundwater users. Tietmeyer said the newest round of trials have escalated to the Supreme Court again.
Not every case is as draining on time or funds as Tietmeyer’s. Some take place between two farmers, or between a municipal water user and a rancher or in the most worrisome cases, a big water buyer and a farmer.
Rep. Jon Becker, R-Fort Morgan, said HB 1337 would have blocked a lot of the illegal water speculation that takes the water off of ag lands. Becker, who supported the bill in the House, said the bill was really “common sense,” and he guaranteed he is willing to carry the bill next year.
In the years since the lawsuit in the Upper Crow Creek Basin started, Tietmeyer said his family has spent close to $100,000 on the litigation. Others in the area who own more wells than he does have spent even more, he said. Tietmeyer has seen some farmers forced to choose between their water rights and bankruptcy. At least seven wells in the area have been sitting out of use for more than a decade because their owners couldn’t afford to go to trial.
Tietmeyer said defending his wells was never a question, despite the financial burden, because he needs the water to irrigate his wheat, corn and alfalfa, and to guarantee his farm has a future.
“As a farmer, we’re putting everything upfront, because we can’t afford to lose these rights,” Tietmeyer said. “When you’ve gone 11 years and no one will ever benefit from that court case, there’s something wrong.”
Gov. John Hickenlooper signs House Bill 16-1109 on April 21, 2016, with state Senators Kerry Donovan and Jerry Sonnenberg, state Reps. Diane Mitsch Bush, Jon Becker, and KC Becker; and Kristin Moseley, Theresa Conley, and legislative aides.
From email from the Eagle River Water & Sanitation District (Diane Johnson):
Gov. John Hickenlooper on Thursday (4/21) signed into law House Bill 16-1109, the Colorado Water Rights Protection Act. Both the Colorado House and Senate had unanimously passed the bill, which protects state issued water rights on federal lands.
HB-1109 confirms U.S. Supreme Court, Colorado Supreme Court and federal statutory precedent, which provides that water rights in Colorado are adjudicated and administered according to Colorado laws, not pursuant to administrative policies of the U.S. Forest Service or Bureau of Land Management. When it comes to securing water, the federal government must defer to Colorado water law and water courts. The Act also prevents state enforcement and administration of restrictions placed by the Forest Service and BLM on the use and alienability of private water rights, and provides tools for water right holders to fight these agencies in court if necessary.
The impetus for the legislation dates to 2012, when the Forest Service demanded that ski areas, in exchange for renewing their leases on public land, turn over their private state issued water rights to the federal government. The ski areas sued and the Forest Service lost on procedural grounds. The Court ordered the Forest Service to go back to the drawing board, and while improvements have been made in the context of ski area policy, the Forest Service has subsequently issued other policy directives that raise additional concerns for private water right holders throughout Colorado.
Accordingly, a diverse group of stakeholders, including municipalities, water providers, and agricultural, recreational, and environmental interests, worked together on language in the bill that protects state water rights and prevents environmental streamflow impacts. Legislative support was similarly diverse as state Reps. KC Becker, D-Boulder, and Jon Becker, R-Fort Morgan, and state Senators Jerry Sonnenberg, R-Sterling, and Kerry Donovan, D-Vail, sponsored the bill, with co-sponsors such as Rep. Diane Mitsch Bush, who represents Eagle and Routt counties.
The issue has been particularly concerning for western slope entities given the extensive federal lands in the area. About 80 percent of lands in Eagle and Summit counties are federally owned. Eagle River Water and Sanitation District and Upper Eagle Regional Water Authority provide water service in eastern Eagle County and by necessity, have water infrastructure on federal lands. Rick Sackbauer, Eagle River Water and Sanitation District board chair, called HB16-1109 “a great victory for water right holders in the Eagle River valley and throughout Colorado” and said, “the legislation serves as a strong message to the Forest Service and BLM that Colorado water rights are governed by Colorado law.”
George Gregory, Upper Eagle Regional Water Authority board chair, noted, “The Authority and other water providers have made enormous financial investments in water rights and water infrastructure in reliance on state laws. Recent actions by the USFS and BLM discourage such investment, create uncertainty in Colorado’s water rights system, and represent an effort by these agencies to benefit from the hard work of private parties without providing compensation. Passage of the Act ensures that such investments are protected for our customers, who ultimately fund public water service and infrastructure.”
For more information, go to http://www.erwsd.org, link to a fact sheet, or contact general manager Linn Brooks at 970-476-7480.
FromThe Grand Junction Daily Sentinel (Charles Ashby):
A bill to prevent new evidence from being presented in groundwater rights appeals got caught in a legislative maelstrom Tuesday from which it can’t return.
After more than two hours of public testimony, most of which was in favor of the idea, the measure at first failed to get a motion to be referred out of the Senate Judiciary Committee, leaving it in a kind of legislative limbo for a while.
Later, however, the panel returned and killed HB1337 long after its sponsor, Sen. Ray Scott, R-Grand Junction, had left.
During that time, Scott had started to investigate ways to get the support he needed to revive the bill in hopes of persuading the chairwoman of the committee, Sen. Ellen Roberts, to have an actual vote on it.
Problem was, though, that Durango Republican was one of a majority of senators on the five-member committee who opposed the bill, which the committee ultimately killed on a unanimous vote.
Scott wasn’t happy at the outcome because he believed he had the votes to get the measure out of committee even though it was opposed by Senate President Bill Cadman, R-Colorado Springs, who took nearly three weeks to assign it to a committee.
“Sad to see such disingenuous activities by senators,” the Grand Junction Republican said. “Didn’t even have the courage to kill the bill in front of farmers and ranchers who are left holding the empty water bucket.”
The measure was designed to align the Colorado Groundwater Commission with other state panels when it comes to adjudicating certain issues, in this case, groundwater rights. Unlike decisions made by that commission, appeals in all other state panels — much like lower courts in general — bar the introduction of new evidence on appeal.
Scott said that practice has allowed well-funded water rights sellers to try a case twice, something small farmers and ranchers told the committee they can’t afford to do.
The bill also pitted two well-heeled investors against each other: former GOP Gov. Bill Owens and billionaire businessman Phil Anschutz. Owens, who opposed the bill, is executive director of a land and water development and asset management company; Anschutz, who supported the bill, has numerous farming interests, many of which rely on groundwater supplies…
On Tuesday, the Senate gave final approval to SB97 to bar the Legislature from using severance tax revenues for anything other then their intended purpose.
Those taxes, paid by mineral extraction companies, go to fund the Colorado Department of Natural Resources and in grant and direct disbursements to local communities, to offset the impact of such industries as mining and oil and gas development.
A legislative battle over ground-water disputes that divided top Republicans washed out in committee Tuesday afternoon.
House Bill 1337 would have made it harder for municipalities, developers or others to win court cases for permits to pump water that might otherwise be used agriculture didn’t get a motion for a vote after hours of testimony from farmers and water districts.
The bill would keep those who would dispute decisions from the state Ground Water Commission from introducing new evidence in the appeal process. Their competitors said it would allow them to out-spend farmers, ranchers and rural water districts to overpower them in court.
“The size of a checkbook should not determine how water is managed,” Marc Arnusch, a Weld County farmer and member of the Lost Creek Ground Water Management District told the Senate Judiciary Committee Tuesday.
Committee chairwoman Ellen Roberts, a Republican from Durango who is a lawyer, said that instead of the routine 2 out of 100 state Ground Water Commission cases a year that are appealed to district court, many more would have to pay for studies and legal expertise up front to hedge against the potential of an appeal later.
“I don’t see how this would reduce costs for everybody,” she said. “It would drive them up.”
The bill was sponsored by Sen. Ray Scott, a Republican from Grand Junction who is considering a run for governor in 2018.
Scott and House sponsor Don Coram have been at odds over the bill with Republican Senate President Bill Cadman and the last Republican governor, Bill Owens, who personally urged Republican lawmakers to kill the bill.
Owens works for an investment group that deals in water.
The legislation sailed through the Democrat-led House, passing 60-5 on April 1. It was not assigned to a Senate committee until three weeks later.
“It’s been a wild ride to get to this hearing,” Scott said.
The bill’s supporters fear municipalities getting well permits to pump year-round instead of seasonally, as agriculture does.
“No one wants to see more ‘buy and dry’ of ag water,” Colorado Farm Bureau president Don Shawcroft said. “This legislation is necessary to level the playing field on applications to change water rights in designated basins. What’s happened is that if the application is appealed to the district court, the applicant is using legal maneuvering to bring new information that was not presented to the Ground Water Commission.”
A measure that aimed to level the playing field for farmers and ranchers appealing groundwater rights rulings drowned in the Legislature on Tuesday.
The legislation would have prohibited entering new evidence on appeal after a state commission makes a decision on groundwater disputes…
The bill had powerful opposition from former Gov. Bill Owens, a Republican, and Senate President Bill Cadman, R-Colorado Springs.
“Big boy politics at its worst,” lamented Rep. Don Coram, R-Montrose, who co-sponsored the bill in the House, where it passed 60-5, with the support of Rep. J. Paul Brown, R-Ignacio.
The 12-member Colorado Ground Water Commission issues decisions on disputes. Appeals, however, are handled by water court judges in district courts across the state.
State law allows for new evidence to be entered upon appeal when the issue hits water court, though such appeals are rare.
At that time, larger water interests – often those that try to transfer water from agricultural to municipal use – rely on water engineers and other experts to stack evidence in the case, say proponents of the bill.
Smaller farmers and ranchers – who are fighting for their water rights – are forced to invest in attorneys to combat the insertion of new evidence. Costs can become unbearable.
“It finally puts a stop to the games being played by those looking to take advantage of our designated basin system,” Marc Arnusch, a member of the Ground Water Commission, said of the legislation.
“A case must be heard again completely from the beginning, which causes a great deal of time and money.”
Coram assumed the measure would be a simple fix to an obvious problem. But that was before it became embroiled in politics.
Since leaving office in 2007, Owens has worked on water and land resource issues, including proposing water sales to municipalities. Coram gave Owens and Cadman “100 percent credit” for the bill’s troubled path in the Senate.
“I’ve worked on things in this building that’s taken me two, three years to get through. I’ll be back,” Coram said.
Critics of the bill – including Sen. Ellen Roberts, R-Durango – say the measure would erode an unbiased appeals process before a judge. They point out that most of the commission members are political appointments by the governor, unlike a court.
“It’s a stacked commission,” Roberts said.
“When you go to court, there is an independent judge … there are procedural differences.”
Here’s an in depth look at proposed legislation from Jerry Sonnenberg that would set limits for fines levied by state agencies, from Marianne Goodland writing for The Fort Morgan Times. Here’s an excerpt:
State agencies shouldn’t have free rein to charge exorbitant fines, especially to small communities that may not be able to pay them. That’s according to Jerry Sonnenberg, a state senator from Sterling whose district includes Morgan County, anyway.
He’s the state Senate sponsor of a proposal that would limit the ability of a state agency to fine people for violating state law or agency rules, particularly when an agency hasn’t notified an alleged violator in writing or given at least 20 business days to fix the problem.
Sonnenberg, a fan of reducing bureaucracy wherever possible, is pushing a bill to address situations like the kind faced by the city of Burlington, which was last year slapped with a nearly six-figure fine for violating the state’s clear water regulations.
According to a news release from the state Department of Public Health and Environment, which regulates water quality, the city was cited for violating 2,109 drinking water regulations in 2014, and it’s the second time the Burlington has been cited for violations related to nitrate levels in public drinking water.
Nitrates come from fertilizer, according to the Environmental Protection Agency. Once ingested, they convert to nitrite, which can have serious health consequences for infants, young children and pregnant or nursing mothers.
Burlington’s nitrate levels in its drinking water have been higher than the state standard since 2009. Once regulators discovered that violation in 2014, the Department of Public Health and Environment required the city to notify residents that the nitrate levels exceed the standard for safe drinking water. According to the department, the city reported its drinking water had exceeded safe levels only once, in 2010, and never notified the public of the problem.
In November, according to the Burlington Record, the city completed negotiations with the department on the fine, which was reduced to $150,000, along with an agreement to implement a project to reduce nitrate levels back to safe standards.
Sonnenberg’s plan to rectify all this — and to make sure other municipalities, individuals and businesses in Colorado don’t end up in the same situation — comes with a three-tiered structure for fines. Cities, counties or other governments, for instance, would have to pay 5 percent of its tax revenue from the most recent fiscal year. Businesses could be hit for as high as 10 percent of their operating revenue for the past fiscal year. Individuals would have to pony up to 10 percent of their taxable income based on the most recent state income tax return.
This proposed legislation at the Statehouse doesn’t apply to criminal violations.
One of the biggest problems for the plan, though, is its cost. A fiscal review produced by nonpartisan economists at the state Capitol estimate it will cost the state about $40 million per year because of lost revenue. The bill also carries a $1 million price tag for implementation. That cost, which would impact the 2016-17 budget that just passed the statehouse, will make it a tough sell in the Democratically controlled House.
The bill drew heated discussion in the state Senate Wednesday between the Republican Sonnenberg and Democratic Sen. Andy Kerr of Lakewood.
The plan “quits having us balance the budget on the backs of people, by using a hammer to levy fines against citizens and businesses,” Sonnenberg told the Senate. “If there’s a problem on water or air quality, or filing of paperwork, let’s figure out how to fix it rather than allowing government to be heavy-handed.”
He cited Burlington as an example, noting how the city faced a nearly $1 million fine but has only a budget of $3 million. But he didn’t mention that the city had negotiated the fine down to $150,000, a point Kerr raised during the debate.
Kerr said the bill would put the 2016-17 state budget out of whack by $41 million.
“That’s a heavy hammer on the citizens of Colorado,” Kerr said, adding that the only place to cover that hit to the state budget is to increase the K-12 shortfall by $41 million. “That’s balancing the budget on the backs of our students.”
The Colorado House on Thursday gave final approval to a measure that would allow a quick response to emergency mine spills, such as Gold King.
The bill would authorize the use of emergency funds anytime hazardous circumstances exist at a legacy mine site.
The Colorado Division of Reclamation, Mining and Safety is currently allowed to use the funds only if the site is subject to the division’s regulatory authority.
“This is an important step to ensure we can take care of hazardous conditions at mining sites and protect our environment and public safety,” said Rep. Millie Hamner, D-Dillon, who co-sponsored the bill with Rep. Don Coram, R-Montrose.
Legacy sites are hard-rock mining operations that were abandoned prior to July 1, 1976…
At least 23,000 inactive mines have been identified in Colorado, many of which pose threats to public health and environment.
The legislation passed Thursday would allow for cleanups at sites that are not listed as a Superfund site.
It passed the House, 63-2, and now heads to the Senate for consideration.
Rep. J. Paul Brown, R-Ignacio, has pushed for the bill for several years, pointing to looming water shortages and pressure on agricultural communities.
The bill would require the Colorado Water Conservation Board to study the amount of water that has been delivered over 20 years to Nebraska from the South Platte River in excess of the amount allowed under the river agreement.
“The Front Range is depending on the Western Slope for water and there just isn’t any there to bring over,” Brown said.
The bill could receive a final vote in the House as early as Wednesday, before moving to the Senate for consideration.
Having survived an earlier appropriations hearing in the House, the bill stands its best chance yet of making its way through the entire legislative process. The $250,000 to pay for the study would come from existing severance taxes.
In addition to studying water leaving the state, the measure would examine possible locations for a reservoir along the river between Greeley and Julesburg.
Water officials would report back to lawmakers with findings…
There are 25 transmountain diversions across the state, in which water from rural Colorado is used for municipalities along the Front Range. Brown would like to avoid any more diversions.
“We cannot afford to go ahead and waste this water out of the state of Colorado,” Brown said. “There are all kinds of benefits to water storage, as we can see of the reservoirs all over the state of Colorado.”
State legislation aimed at helping government deal with inactive mines contaminating waterways advanced Monday, a step toward cleanups at sites that cannot qualify for a federal Superfund designation.
The bill backed by Reps. Millie Hamner, D-Dillon, and Don Coram, R-Montrose, passed the House on its second reading. It allows for the use of funds collected by state mining regulators at inactive mine sites where hazardous circumstances exist.
But the amount, $100,000 in an emergency fund, is tiny compared with the magnitude of the problem, with hundreds of mines draining into streams and rivers.
“It’s a small amount of money, but every bit can help, and it provides more flexibility,” said Todd Hartman, spokesman for the state Department of Natural Resources.
The recommendation will be published in the Federal Register on Thursday, which sets off a 60-day public comment period before the rule can be finalized.
The proposal calls for adding eight new sites to the National Priorities List, including Bonita Peak Mining District in San Juan County.
The EPA recommended the site after Gov. John Hickenlooper sent a letter to federal officials in February backing the designation, which would inject large amounts of federal dollars into permanent restoration efforts. The action came in the wake of the Aug. 5 Gold King Mine spill.
Hickenlooper sent the letter to the EPA after Silverton and San Juan County expressed support for the listing.
“This is a crucial next step in making the region eligible for necessary resources and comprehensive cleanup efforts under EPA’s Superfund program, but our work is not done,” Hickenlooper said. “We are working with the EPA to ensure that adequate funding for this site is provided, including immediate interim measures and options to mitigate any further water quality deterioration.”
The listing would impact as many as 50 mining-related sites in the Gladstone area that have contaminated the Upper Animas, Mineral Creek and Cement Creek for more than a century.
Restoration efforts would likely include a permanent water-treatment facility, as well as long-term water quality monitoring…
Local officials, however, vow to closely watch the process, which could last for many years. They want a voice at the table and to ensure that boundaries of the proposed Superfund site don’t expand. Some also worry about blocking access to the backcountry.
Meanwhile, Hickenlooper on Wednesday renewed his support for Congress to pass Good Samaritan legislation, which would ease liability concerns for government and private entities to restore draining mines.
And the state Legislature on Wednesday advanced a bill that would allow the state to use emergency response funds for hazardous conditions at a legacy hard rock mine site that is a danger to the public. Currently, the state can only use those funds at mining sites subject to the state’s regulatory authority, so the bill would expand the state’s authority.
House Bill 1276 passed the House Agriculture, Livestock and Natural Resources Committee unanimously without any conversation. It now heads to the full House for approval.
From the South Platte Sentinel (Greg Brophy/Mark Hillman):
Local ground water management districts protect the underground water rights of farmers and other residents of rural Colorado. House Bill [HB16-1337], now under consideration at the State Capitol, will ensure that water speculators cannot play deceptive games in court in order to exhaust the limited legal budgets of these districts.
HB 1337 will clarify a recent court decision, which found that state law was unclear regarding whether new evidence could be introduced when decisions of the Ground Water Commission are appealed in district court.
Essentially, the court said that entirely new evidence can be presented in court – evidence that was never considered by the commission or local ground water district.
HB 1337 is an easy fix. It simply requires parties in contested appli-cations to present all their evidence at the administrative hearing level. This is in line with how things are done in Water Court where the applicants must prove they are not injuring existing water rights and show all their evidence at that time.
HB 1337 ensures applicants only get one bite of the apple and aren’t able to put on multiple cases on the same contested application in order to run up the costs to the detriment of our communities, farms and towns.
Because of our roots in rural Colorado and in agriculture, we wanted to be sure people are aware of this important legislation.
We urge you to call or e-mail Senate President Bill Cadman to thank him for his leadership and let him know that this bill is important to rural Colorado.
While you’re at it, thank Sen. Jerry Sonnenberg (Sterling) and Sen. Larry Crowder (Alamosa) for their leadership in protecting Colorado agriculture. The future of eastern Colorado is in their hands!
“As a farmer’s daughter, I’m proud to have helped pass this common-sense water-conservation measure,” said Rep. Jessie Danielson, a Democrat from Wheat Ridge who was one of the bill’s sponsors.
Conservation groups hope the legislation encourages Coloradans to capture and use runoff from their rooftops on their lawns and gardens to help people recognize that water is a precious resource in this arid state, compared to the amount they would have used from their garden hoses, otherwise.
FromThe Grand Junction Daily Sentinel (Charles Ashby):
Though many homeowners already do it, Colorado residents soon could be able to use rain barrels — legally — to collect water from their rooftops under a bill that won preliminary approval in the Colorado Senate on Thursday…
Sen. Michael Merrifield, D-Manitou Springs, who sponsored the bill in the Senate, said the measure has been altered to address as many concerns as possible to comply with Colorado’s complicated water laws, including making it clear that the use of rain barrels does not constitute a water right.
Merrifield said a chief benefit of the bill is it will help educate Colorado residents about the importance of water, and how it is the life-blood of the state.
“It allows urban residents to connect themselves to the water system of our state,” he said. “We are not blessed with a huge amount of water. The more our urban residents understand the system, the better for all users.”
Under the bill, rain collection is limited to above-ground barrels and only for rooftops of single-family homes. It also bars homeowners’ associations from banning such barrels, although they are allowed to make rules governing the appearance of the barrels that are used.
While no one spoke out against the bill when it won a voice vote on the floor of the Senate, Sen. Jerry Sonnenberg, R-Sterling, expressed his opposition to the measure when it cleared the Senate Agriculture, Natural Resources & Energy Committee on Wednesday.
“My concern here is that if indeed we have rain barrels that may cause depletions out of order of priority storage … the next person in line would be the one curtailed,” Sonnenberg said. “That’s a concern for me, given that agriculture has 85 percent of the water.”
To help address that issue, the bill was amended to require the State Engineer’s Office to report to the Legislature by 2019 whether there is any evidence that the use of rain barrels has caused injury to downstream users.
Also opposing the measure in committee were Sens. Ray Scott, R-Grand Junction, and Randy Baumgardner, R-Hot Sulphur Springs. Supporting it from the Western Slope included Sens. Kerry Donovan, D-Vail, and Ellen Roberts, R-Durango.
The bill requires a final Senate vote before it heads to the governor’s office. It passed the House last month on a 63-1 vote.
A water banking bill being considered in the state Legislature would help farmers keep their water rights while increasing the range of uses.
“Farmers always get the short end of the stick. The state likes to pick on farmers,” said Jay Winner, general manager of the Lower Arkansas Valley Water Conservancy District.
Farms face a policy of “use it or lose it” that means if water can’t be used on a specific parcel of land, it flows downstream. Water banking could mean about 5-10 percent more water could be put to use each year, according to some estimates.
“Once a farmer deposits the water in this water bank, he can use it in any way within the Arkansas Valley,” Winner explained.
The bill, HB16-1392, is sponsored by Reps. Jeni Arndt, D-Fort Collins, and Ed Vigil, D-Fort Garland, and Sen. Larry Crowder, R-Alamosa. The Lower Ark district is backing the bill as a way of improving on the 2013 legislation, HB1248, that established a pilot program now being used by the Arkansas Valley Super Ditch.
Winner spoke about the bill Thursday with The Pueblo Chieftain editorial board.
Winner expects the water bank to succeed where others have failed because it will be useful to farmers. It allows for short-term leases, either to cities or other farms, that are now possible, but expensive and complicated to execute. No change in water right is required, since the leases would be made under administrative rules under the supervision of the Colorado Water Conservation Board.
“This is a way to bring some land back into production,” Winner said. “The water rights decree never changes, but it provides more options to the farmers.”
The legislation also could advance concepts such as deficit crop irrigation, supplementing sprinklers or well and or partial irrigation of a parcel.
Farmers would be limited to putting water into the “bank” every three years in 10 or using no more than 30 percent of the total consumptive use water supply over that time. Water would not be able to leave its basin of origin. [ed. emphasis mine]
“It makes the water more valuable to farmers,” Winner said
Straight line diagram of the Lower Arkansas Valley ditches via Headwaters
Good news for urban farmers. Colorado may soon lose its dubious distinction as the only state in the country to outlaw collecting rooftop runoff in rain barrels.
Today, the Senate Agriculture, Natural Resources and Energy Committee voted 6 to 3 to authorize rainwater collection.
House Bill 16-1005 would allow Coloradans to use up to two 55-gallon rain barrels to collect stormwater that rolls off of roofs. That rainwater can only be used to water lawns or gardens, under the bill.
The sticking point that killed the bill last year and held it up for the last week in the Senate: the impact such collection would have on the state’s water supply.
A study from Colorado State University, cited by the bill’s backers, said that rainwater collection wouldn’t impact water supply or long-held water rights.
The concern is centered around the backbone of Colorado water law, a doctrine called prior appropriation, which gives priority water rights to the first person to [apply a diversion to beneficial use].
In the House, the bill’s Democratic sponsors added amendments stating rainwater collection was not intended to interfere with prior appropriation.
When the bill was reviewed by the Senate Ag Committee last week, deputy state engineer Kevin Rein said if people claimed their water rights were being harmed, the state engineer would look first at junior water rights holders and not to rain barrel users.
Rein clarified those views today, pointing out the bill has no mechanism for tracking rain barrel use.
Under the measure, the state engineer would have the authority to curtail rain barrel use, but only if someone can point out which rain barrel is violating prior appropriation.
The bill drew “yes” votes from the committee’s four Democrats and from two Republicans: Sens. Ellen Roberts of Durango and John Cooke of Greeley.
Roberts has long been considered the swing vote on the committee in favor of the rainbarrel bill. She told The Colorado Independent after the vote, rainwater collection will likely have little more than minimal impact on water rights, the issue that halted the bill’s progress last year.
She doubts a flood of Coloradans will rush to buy rain barrels, which aren’t cheap. On the plus side, she said collecting rainwater will be beneficial as an educational tool for conservation.
One of the bill’s biggest backers, Pete Maysmith of the environmental group Conservation Colorado, said today in a statement the bill showed “just how bipartisan conservation issues can be. Both sides came together to craft language that recognizes prior appropriation but also acknowledges the shifting dynamics of water policy in the American West and the need to empower citizens to make change.”
Maysmith also thanked the committee’s chair, Republican Sen. Jerry Sonnenberg of Sterling, for his “thoughtful consideration” and for allowing the bill to come to a vote.
Last year, Sonnenberg held up a committee vote on the 2015 version until the next-to-last day of the session, killing its chances of reaching a full Senate vote.
Sonnenberg was still a “no” vote Wednesday. He told the bill’s sponsor, Democratic Sen. Mike Merrifield of Manitou Springs,that he is still concerned that junior water rights holders will be shortchanged by rain barrel enthusiasts.
The bill’s House sponsors, Reps. Jessie Danielson of Wheat Ridge and Daneya Esgar of Pueblo, both Democrats, hugged when they heard the bill passed, according to a Tweet from KUNC reporter Bente Berkeland.
The bill now goes to the full Senate for debate and a possible final vote.
[Sen. Jerry Sonnenberg] allowed a vote Wednesday, and the legislation passed by a 6-3 vote, according to the committee’s legislative council.
Sonnenberg was one of the “no” votes, along with Republican Sens. Randy Baumgardner of Hot Sulphur Springs and Ray Scott of Grand Junction.
“I think we have in front of us a product of good collaboration and open-mindedness,” said Sen. Michael Merrifield, a Colorado Springs Democrat and the bill’s main sponsor in the Senate, before the vote…
The Democrats’ bill now moves to the full Senate, where Republicans hold a one-seat majority.
The bill passed the state House with broad bipartisan support after the compromises, which prompted organizations that formally opposed it, such as the Colorado Farm Bureau, to become supporters.
Gov. John Hickenlooper on Tuesday said he is optimistic he will see a rain-barrel bill on his desk for him to sign into law this year.
“Sometimes Colorado functions like the way Great Britain says the United States did leading up to World War II,” he said. “Prime Minister Churchill said the United States could always be counted on to do the right thing, but only after they’ve exhausted the other possibilities.”
After two years of wrangling, a bill legalizing the use of rain barrels passed it’s biggest hurdle Wednesday and seems likely to become Colorado law…
Sen. Michael Merrifield, D-Colorado Springs, is among the bill’s advocates.
“I think we’re going to actually get it done this year,” Merrifield said. “A lot of people were not aware they were breaking the law. A lot of people were collecting rain water off of their roofs.”
Sonnenberg was concerned about the impact the urban rain barrels might have on the amount of water flowing downstream to farmers and ranchers with water rights dependent on high-flows during large rain storms.
Merrifield said he worked to alleviate those concerns, including amending the bill so the state engineer will investigate and report any potential impacts from the increased use of rain barrels.
“In a state that is so desperate for water as Colorado, I think it’s valuable that people understand water law and the scarcity of water and how water can be used efficiently, how to conserve,” Merrifield said. “The more we know about it, the better I think it is for farmers who really were those who had the biggest objections to this bill.”
The Farm Bureau supports the bill this year.
Single-family units or multi-family structures with four or fewer units would be permitted to collect up to 110 gallons of precipitation from the rooftop of the building. Collected water must be used for outdoor purposes, like watering the lawn or garden.
FromThe Durango Herald (Peter Marcus) via the Cortez Journal:
The political clouds in Colorado have parted in favor of allowing Coloradans to collect rain falling from their roofs.
Once a storm of controversy, the now-famous rain-barrel legislation cleared a Senate committee on Wednesday with bipartisan support. It heads to the full Senate, where the bill likely has the votes to finally pass after two years…
“We have a product of good collaboration and open-mindedness,” said the bill’s sponsor, Sen. Mike Merrifield, D-Colorado Springs…
One amendment would require the Division of Water Resources to curtail the use of rain barrels based on a determination of injury to water rights.
Other amendments include stating that using a rain barrel is not a water right and requiring the state engineer to evaluate if the use of rain barrels impacts water rights across the state…
…a study by Colorado State University found that allowing 110 gallons of rainwater storage per household would not decrease surface runoff by any detectable amount.
Since John Hickenlooper’s administration finalized Colorado’s first-ever statewide water plan in November, watchdogs have been wondering when — and if — state officials might start putting the document into action.
Some had feared the issue, which is likely to irk at least some of the state’s many competing water interests, might be put off until after the November election. But, alas, there’s at least some forward movement this election year.
This week, state lawmakers are taking a first look at an annual water projects bill that includes at least three items that might trigger some water planning momentum.
The largest? A $5 million yearly transfer to the Colorado Water Conservation Board construction fund “to implement the state water plan.” That money would come from a severance tax “perpetual base” account that had $350 million in the bank as of June.
But what would that $5 million be spent on? The measure, Senate Bill 16-174, doesn’t exactly say, other than it could be “studies, programs or projects.”
Rep. Ed Vigil of Fort Garland, the Democratic chair of the House Agriculture, Livestock and Natural Resources Committee, is the House sponsor on the bill, which was introduced Monday. Asked Tuesday what the state would get for taxpayers’ $5 million investment, he said that was a question he intends to ask the Water Board when the bill hits his committee.
The Water Board, which is part of the state’s Department of Natural Resources, is responsible for implementing the water plan — a pet plan of Hickenlooper, who has said that warding against a massive, mid-century water shortage is a key goal of his second term.
The state water plan, finalized November after two years and more than 24,000 public comments from throughout the state, lacks specifics on what legislation should be proposed or even which specific projects would help Colorado solve a looming water shortage of some one-million acre-feet by 2050.
An acre-foot of water is the amount of water it would take to cover Sports Authority field at Mile High from endzone to endzone with one foot of water. A family of four uses about one acre-foot of water per year, or about 326,000 gallons, according to the U.S. Bureau of Reclamation.
“It’s a step in the right direction, but there’s still not much there in there,” water lawyer Peter Nichols, one of Hickenlooper’s water appointees, told The Colorado Independent as the water plan was being drafted last summer. “There are a lot of platitudes and clichés and nice words like ‘foster,’ ‘develop,’ ‘encourage,’ and ‘coordinate’ in this draft. But those aren’t action words. Those words won’t carry us. They’re not going to meet our water needs for 2050.”
This week’s water projects bill does propose some specifics — albeit relatively small ones in the $20 billion context of the statewide water plan’s projected price tag.
One provision in the measure seeks $200,000 from the Conservation Board’s construction fund to study underground storage, such as refilling aquifers, “along the front range [sic].” That provision matches up neatly with a bill awaiting action from the House Appropriations Committee.
House Bill 16-1256, sponsored by Rep. J. Paul Brown of Ignacio, got a glowing vote of support from the House Agriculture Committee last month. Brown’s bill would task the water conservation board with studying storage possibilities along the South Platte River between Greeley and Julesburg. But if that measure fails to survive the full House, the study could still move forward under the projects bill being proposed this week.
The second specific item tied to the water plan is $1 million to update the Statewide Water Supply Initiative, also known as SWSI (pronounced SWA-sea). That 2010 study, commissioned by the Conservation Board, identified the one million acre-foot water shortage that became the driving force behind creating the state water plan.
But many believe the SWSI figure is too low, perhaps by as much as another one million acre-feet. During the water plan development process, officials on the Conservation Board stated the SWSI study would be updated in the next year or two to more accurately estimate the water shortage Coloradans will face in the future.
The bill is on the calendar for its first hearing in the Senate Agriculture, Natural Resources and Energy Committee on Thursday.
A perennial bill that would allow Coloradans to collect rainwater from rooftops in two 55-gallon barrels for watering lawns and gardens was sailing toward the Governor’s desk to be inked into law. But the measure stalled out in the Senate Agriculture, Natural Resources and Energy Committee.
Just like last year, Eastern Plains Republican Sen. Jerry Sonnenberg said he worried rainwater harvesting would shortchange rural senior water-rights holders from what they were due, and the state would have no way to stop the harvesters from hoarding what the law states is not theirs.
Rainwater harvesting enthusiasts are now asking if anything could convince Sonnenberg that two 55-gallon rain barrels attached to downspouts per household would not put a significant dent into his rural constituents’ water rights.
In Colorado, whoever lays first claim to a water right, in a river, stream or ditch, gets their water first. Everyone else takes a back seat, and may get less water, especially in times of drought. This is the backbone of state water law, a doctrine called prior appropriation.
Sonnenberg and other rural lawmakers fear rainwater collection would impact those senior water rights. And those fears were not put to rest with testimony from the Department of Natural Resources.
Sonnenberg questioned Kevin Rein, the deputy state engineer, about how the department would shut down rain barrel use when someone with senior water rights claims they’re losing their rightful water supply. Rein noted the bill grants the state engineer, who monitors water usage, the authority to ensure everybody complies with Colorado water law.
That applies to rain barrel use, too. Just how that would work, however, wasn’t clear.
Rein pointed to a study from Colorado State University that claimed there would be little or no impact from rain barrel use.
That didn’t sway Sonnenberg, who suggested a hypothetical: What if the city of Greeley is losing 40 acre-feet of water, and believes it’s due to rain barrel use in Denver? How would the state engineer determine which rainwater harvesters were to blame, which barrels were holding what was due downstream That’s where things got messy. Rein said the first place he would look was not at rain barrels, but at water used by someone with a lower priority claim to the water. Crawling around through people’s alleys and backyards isn’t likely a workable way to figure out if that’s where the loss is coming from, Rein said.
When the bill was in the House, its sponsors, Democrats Reps. Jessie Danielson of Wheat Ridge and Daneya Esgar of Pueblo, worked with rural lawmakers, such as Rep. Jon Becker of Fort Morgan, to add language that said rain barrel use was not intended to harm senior water rights.
“It worries the heck out of me when the state engineer says when water is short,” if that shortage could be attributable to rain barrels, the person who pays for it instead is the junior water rights holder, Sonnenberg said. “That says the amendments put on in the House are lip service and not enforceable.”
Last year, Sonnenberg did exactly the same thing. He allowed testimony on the bill, which was heard in the Senate Ag Committee on April 16, then put it on hold until the day before the 2015 session ended, in effect killing the bill.
It’s not like there aren’t the votes in the Senate to pass it. The bill is supported by one of Sonnenberg’s Ag Committee colleagues, Senate President Pro Tem Ellen Roberts, a Durango Republican. Her vote, along with the committee’s Democrats, are enough to get the bill out of the Ag Committee. But only if the bill is allowed to come to a vote.
Those who advocated for the bill point to its popularity with Coloradans. Theresa Conley of Conservation Colorado told The Colorado Independent Thursday they’re encouraged by the bill’s broad support, which she noted included representatives from Greeley Water and the Colorado Farm Bureau. Both organizations opposed the bill in 2015.
It’s not always clear where to lay the blame when someone’s water rights are injured, said Conley. She vowed to sit down with Sonnenberg to figure out a way to address his concerns.
The bill’s Senate sponsor, Democrat Mike Merrifield of Manitou Springs, said he is confident the bill will eventually clear the committee and make it through the Senate.
“Citizens of Colorado want to be able to do this,” Merrifield told reporters Thursday. “Rain barrels are an efficient way to learn about water policy in Colorado.”
“I didn’t plan on today being Groundhog Day, I anticipated that the bill would pass,” said state Sen. Michael Merrifield (D-Colorado Springs), sponsor of House Bill 16-1005 [.pdf].
“Citizens of Colorado want to be able to do this,” Merrifield said. “A rain barrel is an efficient way for people to learn about water policy in Colorado.”
Opponents worry rain barrels would prevent some water from reaching downstream users. The bill already passed in the House where Democrats added changes to bring Republican opponents on board. One amendment would give the state water engineer the ability to shut down rain barrels if they are determined to impact downstream users. Another clarifies that having a rain barrel is not a water right.
“I indeed had high hopes that those were helpful,” said Senator Jerry Sonnenberg (R-Sterling), chair of the Senate Agriculture and Natural Resources Committee.
Like many inside the capitol, he’s tired of having the rain barrel debate.
“I want to be done with this, but right now I’m not comfortable,” he said.
Sonnenberg disputes a study from Colorado State University water experts that found rain barrels would not hurt other water users, because that water would otherwise be absorbed in the grass and shrubs. Sonnenberg posed a hypothetical scenario.
“Say the town of Greeley looks like they get shorted 40 acre-feet and it can be attributed to rain barrel usage in the city and county of Denver,” Sonnenberg said. “How would you deal with that specific type of instance? You obviously can’t walk up and down alleys and see who has rain barrels to curtail them.”
Bill supporters say that scenario would never happen because rain barrels have no impact, but Sonnenberg still wants more information before voting. Colorado is the only state in the country that doesn’t allow rain barrels. Water experts say the measure’s time has come, and they want to move beyond this debate and start focusing on substantive policy changes to deal with projected long term water shortages.
Despite the hurdle in the committee hearing, Sonnenberg and others don’t think there will be a repeat of the bill’s 2015 fate; they expect something to pass before the session ends.
Committee chairman Jerry Sonnenberg, a Republican from Sterling, tabled the bill after a list of people testified for it, including organizations that supported it a year ago.
Sonnenberg tabled the bill last year and never brought it up for another hearing. This year he pledges that there will be a vote, “even if I vote no.”
[…]
Sonnenberg said, first, rain-barrel users needed to recognize Colorado water law’s pecking order of water rights, known as the prior-appropriation system.
Sonnenberg also wants the state engineer’s office to maintain oversight, so that in times of drought rain barrels can be curtailed.
Kevin Rein, the deputy state engineer over water supply and litigation, told Sonnenberg Thursday that regulating rain barrels would be difficult. Beyond checking yards to find the rain barrels, engineers would have to determine if shutting those barrels off would increase water for water rights holders elsewhere.
“It gets more difficult than just checking back yards,” he said.
That gave Sonnenberg pause.
He said that without meaningful enforcement “it would make the farmer pay for that depletion rather than rain barrels. That’s outside the prior-appropriation system, and I haven’t figured out how I’m going to deal with that now.”
Water law experts say rain-barrels are only technically illegal, because proving they injure the water rights of other users is nearly impossible. Nearly all of the water would be absorbed in the ground by the downspout or in the ground in the garden, a Colorado State University analysis indicated.
“We do not think any changes to the water cycle could be accurately quantified or measured,” said Chris Olson, a researcher and program manager at the Colorado Stormwater Center at CSU. “The water is going to be infiltrated or evaporated … The only difference is the timing, a day, maybe two, before the rain barrel is emptied.”
Garin Vorthmann, who represented the Colorado Farm Bureau, testified earlier that the powerful organization supports the legislation now that it includes the House compromises.
“It’s time to find a resolution to this ongoing conversation,” she told the Senate committee.
Danielson expressed disappointment but patience about the Senate logjam.
“I respect Sen. Sonnenberg’s decision to take a close look at this,” she said. “I am hopeful that we, along with rain barrel supporters such as the Farm Bureau, will be able to make rain barrels a reality.”
The move drew criticism from supporters, who pointed out that Republican Sen. Ellen Roberts of Durango supported the bill last year, and offered the swing vote again this year to advance the legislation out of committee.
The bill also earned overwhelming support in the House this year, where it started.
It marks the second time Republican Sen. Jerry Sonnenberg of Sterling delayed a vote on rain barrel legislation. He did it last year when the bill moved through his Agriculture, Natural Resources and Energy Committee. It sat then for nearly a month…
The state’s prior appropriations system grants water rights to the first person to take water from an aquifer or river, despite residential proximity. A study by Colorado State University found that allowing 110 gallons of rainwater storage per household would not decrease surface runoff by any detectable amount on a typical lot.
On Thursday, Sonnenberg questioned Deputy State Engineer Kevin Rein about the Division of Water Resources’ ability to curtail the use of rain barrels based on a determination of injury, as the bill was earlier amended to require.
“It’s an overwhelming chore to go through all the yards in Denver. I think our first cut at that would be we would need to have some rain barrels identified that are resulting in a deprivation of water to the senior water rights downstream, and then we could make that evaluation,” Rein said.
Sonnenberg worried that farmers and ranchers would feel the pinch: “This could very easily go to the next guy, which may be that farmer in Brighton, and have to curtail him.”
Supporters of the bill hoped they would be able to convince Sonnenberg not to delay the bill because of compromises reached along the way. Amendments helped pass the bill in the House 61-3…
Unlikely groups who previously expressed concerns with the legislation have come on board, including Greeley Water and the Colorado Farm Bureau. “It’s time to find a solution in this ongoing conversation,” said Garin Vorthmann, representing the Colorado Farm Bureau.
But Sonnenberg wasn’t convinced, adding: “I want to be done with this … but right now, I’m not comfortable.”
Theresa Conley, a water advocate for Conservation Colorado, said she was “disappointed.”
“Fear is a very motivating thing,” she said. “Until the governor has signed this bill, I’m going to be working on it like it could die tomorrow.”
“There has been a lot of misinformation put out on this bill,” Sen. Jerry Sonnenberg, R-Sterling, said Thursday afternoon. “I’m not comfortable. I’m going to help get an extension and we’re going to lay this over until I can be comfortable, until we can make sure that someone else isn’t paying for someone else’s rain barrel.”
[…]
Sen. Michael Merrifield, a Colorado Springs Democrat and sponsor of House Bill 1005, said it’s like Groundhog Day (the movie) where the same day keeps being repeated…
“I had fully anticipated that the bill would pass and at least with a super-majority,” Merrifield said. “I’m still confident that we’ll pass a bill. I’d like to do it sooner than later.”
Merrifield said concerns could have been addressed on the floor with amendments.
Sonnenberg said he was thrown by testimony from the state water engineer Thursday and needs time to work out his concerns but he pledged to bring the bill for a vote.
“I’m tired of this,” he said. “I’m tired of this issue. I’m confident they have been very willing to work and talk and have these conversations. I think it’s fixable, I just honestly right now can’t think what that is. I will bring this to a vote even if I vote no. We will have closure on this.”
