#COleg: HB16-1256 South Platte Water Storage Study to debut soon

South Platte River alluvial aquifer

From Colorado Politics (Marianne Goodland):

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.”

HB16-1228 Agriculture Protection Water Right Transfer Mechanism meeting recap

Flood irrigation — photo via the CSU Water Center

From The Sterling Journal-Advocate (Jeff Rice):

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.”

Here’s the summary from the Colorado General Assembly website:

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.
  • HB-1228 Notice — #Colorado Division of Water Resources

    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.

    From The Sterling Journal-Advocate (Jeff Rice):

    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.”

    More Coyote Gulch coverage of HB16-1228 here.

    Lower South Platte Water Conservancy District’s 2017 budget = $1 million

    South Platte River Basin via the Colorado Geological Survey
    South Platte River Basin via the Colorado Geological Survey

    From The Sterling Journal Advocate (Jeff Rice):

    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.

    Questions remain on use of rain barrels — The #Colorado Springs Gazette #coleg

    Photo via the Colorado Independent
    Photo via the Colorado Independent

    From The Colorado Springs Gazette (Jim Flynn):

    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.

    2016 #coleg: Lower South Platte Water Conservancy District will be fiscal agent for water storage survey

    South Platte River Basin via Wikipedia
    South Platte River Basin via Wikipedia

    From The Sterling Journal-Advocate (Jeff Rice):

    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.”

    2016 #coleg: Let it rain (in barrels) in Colorado — The Greeley Tribune

    From The Greeley Tribune (Samantha Fox):

    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.