Colorado HB17-1291: Alternate Storage Not Change if Already Quantified — @WaterLawReview

Barr Lake State Park photo via Colorado Parks and Wildlife.

From the University of Denver Water Law Review (Julia Bowman). Click through and read the whole article. Here’s an excerpt:

HB 17-1291, 71st Gen. Assemb., 1st Reg. Sess. (Colo. 2017) – (allowing water users to store water in a place of storage not listed on the decree if the historical consumptive use of the water right has been quantified in a previous change).

House Bill 1291 (HB 1291) has also been called the “Another Reservoir on the Ditch” bill. Co-sponsored by House Representatives J. Arndt, J. Becker, and Senator D. Coram, the bill was introduced to the House on March 24, 2017, and signed into law by Governor Hickenlooper on June 5, 2017. Without any lobbyists or other organizations involved in its preparation, the bill was recognized by legislators and the public alike as a “common-sense” piece of legislation. The bill allows water users to store previously quantified water in an alternate place of storage not listed on their decree without going through water court in certain circumstances.

The benefits of HB 1291 are only available to water users who want to store their decreed water in alternate storage on the same ditch or diversion system (including in nontributary aquifers). The water that qualifies under the bill is limited. It must be attributable to a water right that: (i) has gone through a judicially approved change; (ii) has been decreed for storage; and (iii) has a quantified historical consumptive use. Additionally, the water must be diverted at a point of diversion already decreed for that water right—it cannot be imported from another division—and any applicable transit and ditch losses must be assessed against the water right.

@WaterLawReview: Colorado HB17-1190: Limited Applicability of St. Jude’s Co. Water Case

Spring Creek (RFC Ditch) Roaring Fork River via Aspen Journalism

Click here to read the article (Megan McCulloch). Here’s an excerpt:

After these changes, what remained of the bill was (what was originally) subsection (a). It provided a clear legislative assurance of the validity and preservation of those previously decreed existing water rights that were for aesthetic, recreational, and piscatorial uses. The final bill also protects conditional water rights—rights that have been filed with and decreed by the water court prior to actual use while securing an earlier priority. This bill ensures that owners of conditional water rights for aesthetic, recreational, and piscatorial uses will not face objections based on the St. Jude’s ruling when they return to the water court for diligence or perfection.

The final bill was designed to preclude an overly broad application of the St. Jude’s Co. ruling and to protect recognized rights. While the parties involved did not agree on everything—as reflected in the multiple amendments—in the end, HB 1190 was a bipartisan consensus effort to address an area of law that had been left unsettled by the Court’s St. Jude’s ruling.

South Platte Roundtable meeting recap

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).

From The Greeley Tribune (Tyler Silvy):

A yearlong study centered on a decades-long trend of Colorado sending too much water to Nebraska via the South Platte River yielded dozens of potential storage projects.

But high costs, potential environmental impacts, and bureaucratic and regulatory hurdles could doom the road ahead for any of those possibilities, according to a study presented Tuesday night at the South Platte Basin Roundtable meeting in Longmont.

Further, even if several of the identified projects happen, they would barely put a dent in what’s expected to be a Front Range water needs gap of 500,000 acre feet per year.

The $200,000 study, ordered by the Colorado State Legislature and paid for by the Colorado Water Conservation Board, looked at the South Platte from Greeley to the state line and identifyed potential storage solutions along the way.

Putting any of those solutions — with costs estimates ranging from $190 million to $1 billion — to work most likely will take more time, money and study…

Consultants from Stantec Consulting Services and Leonard Rice Engineers completed the study in December and have toured the state making presentations. The Legislature has yet to get a presentation, but here are the key points legislators will hear:

A large amount of water is physically and legally available but only during wet years and during short periods.

Mainstream options have the most benefit but likely are not permittable and have significant social impacts.

Many off-channel options appear to be feasible and could be combined in different concepts.

Even multiple projects won’t make a big dent in the supply gap.

One reason for the lack of impact is how the South Platte works. When farmers divert water from the South Platte to irrigate crops, some of that water soaks underground and slowly moves back to the river. That’s called a return flow, and return flows feed the South Platte to allow it to flow long after snowmelt water is gone for the season.

That’s why the Sterling No. 1 ditch can completely dry out the river with a diversion and then a mile downriver it’s flowing again.

That’s why the best possible place for a reservoir would be near the Colorado-Nebraska border, and the best solution for keeping as much water as possible — a mainstream reservoir — is the solution that likely never will happen.

A mainstream reservoir along the South Platte essentially would be a lake on the South Platte, with the western portion feeding into the lake and the eastern portion running when the lake releases water.

Water experts agree that would be nearly impossible to get approved.

But the consultants did identify storage options away from the river, including old gravel pits.

Still, building ditches or pipes to fill those gravel pits would prove costly.

The consultants also talked about the 2013 flood and high flows in 2015, which ended up sending 1.9 million acre feet of water to Nebraska — exponentially more water than Nebraska is entitled to via the 1923 compact with Colorado.

But managing or diverting water during a flood event like that would take technology water experts said just doesn’t exist. Instead, ditch companies did everything they could to keep the flood water out of their ditches, lest they get damaged by the torrent.

Groundwater storage also was touched on, but concerns were raised about water losses and the co-mingling of other water rights. Once the water flows under another landowner’s property, for example, they would have the right to pump that water to irrigate crops.

The conversation circled back to the reason for the study. Essentially, lawmakers on the Western Slope long have pointed to the excess water the Front Range sends to Nebraska. Rather than divert more water from the Western Slope, the argument goes, Front Range farmers and municipalities need to figure out how to keep what they have.

Mike Schimmin, a water rights attorney on the roundtable, said his fear is the study will reinforce those feelings and that people will ignore the high cost to capture the extra water.

#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.”

Steamboat Springs: @COWaterCongress Summer Conference, August 22-24

The Yampa River Core Trail runs right through downtown Steamboat. Photo credit City of Steamboat Springs.

Click here to go to the website for all the inside skinny.

2017 #COleg: Gov. Hickenlooper signs HB17-1306 (Test Lead In Public Schools’ Drinking Water)

Roman lead pipe — Photo via the Science Museum

From the Colorado General Assembly website:

Concerning the financing of testing for lead in public schools’ drinking water, and, in connection therewith, making an appropriation.

The bill directs the department of public health and environment (department) to establish a grant program to test for lead in public schools’ drinking water. The department will give the highest priority to the oldest public elementary schools, then the oldest public schools that are not elementary schools, and then all other public schools. The department may also consider ability to pay in administering the program. The department is directed to use its best efforts to complete all testing and analysis by June 30, 2020. The public school must provide at least 10% local matching funds and give the test results to its local public health agency, its supplier of water, its school board, and the department. The department may use up to $300,000 per year for 3 years for grants beginning on or after July 1, 2017, from the water quality improvement fund if there is money available after fully funding existing programs. The department shall provide 4 annual reports to the general assembly regarding implementation of the grant program, including any legislative proposals that may be warranted.

The bill appropriates $431,803 and 1.3 FTE to the department of public health and environment for the implementation of the act.

From The Denver Post (Monte Whaley):

House Bill 1306 received bipartisan backing and plenty of support from school and health officials. Lead in drinking water can lead to long-term health problems in children.

The measure is aimed primarily at older elementary schools with the hope that all public schools will be tested and the results analyzed by June 30, 2020. The bill authorizes the state Department of Public Health and Environment to establish a grant program to test the drinking water in public schools that use a public water system.

As much as $300,000 in grants could be awarded each year for three years, and another $140,000 would be spent to implement the program. The measure also requires school districts that test for lead to contribute 10 percent in local matching funds and give the test results to the local public health agency, water supplier, school board and CDPHE.

Just seven of Colorado’s 178 school districts have tested their water for lead, and in those districts 100 schools were found to have some lead in their water, health officials said.

2017 #coleg: Gov. Hickenlooper signs HB17-1170 — Concerning the limited applicability of the Colorado supreme court’s decision in St. Jude’s Co. v. Roaring Fork Club, LLC, 351 P.3d 442 (Colo. 2015)

Here’s the bill summary from the legislature’s website:

Limited Applicability Of St. Jude’s Co. Water Case

Concerning the limited applicability of the Colorado supreme court’s decision in St. Jude’s Co. v. Roaring Fork Club, LLC, 351 P.3d 442 (Colo. 2015).

In the case of St. Jude’s Co. v. Roaring Fork Club, LLC, 351 P.3d 442 (Colo. 2015) ( St. Jude’s Co. ), the Colorado supreme court held that direct diversions of water from a river to a private ditch for aesthetic, recreational, and piscatorial purposes on private property, without impoundment, are not beneficial uses of water under Colorado water law.

The bill provides that the decision in the St. Jude’s Co. case interpreting section 37-92-103 (4) does not apply to previously decreed absolute and conditional water rights or claims pending as of July 15, 2015. The interpretation of section 37-92-103 (4) in St. Jude’s Co. applies only to direct-flow appropriations, without storage, filed after July 15, 2015, for water diverted from a surface stream or tributary groundwater by a private entity for private aesthetic, recreational, and piscatorial purposes.

From The Vail Daily (Scott N. Miller):

Colorado water law received some needed clarification in the 2017 session of the Colorado Legislature.

The legislature, this session, passed a bill in response to the 2015 Colorado Supreme Court decision in the case of St. Jude’s Co. v. Roaring Fork Club LLC. That decision held that direct diversions of water from a river to a private ditch for “aesthetic, recreational and piscatorial” purposes are not “beneficial uses” under state water law.

“Beneficial use” is a much-used term in state water law and originally encompassed primarily to agricultural and municipal uses. That definition has been evolving throughout the years — through both court decisions and legislation — to protect recreational uses, too, and the new legislation makes that clearer…

The bill was sponsored in the House of Representatives by Democrat K.C. Becker and co-sponsored in the Senate by Republican Jerry Sonnenberg. In a statement after Gov. John Hickenlooper signed the bill, Becker said the law “provides the needed certainty for water rights holders in Colorado.”

Eagle River Watershed Council Executive Director Holly Loff agreed. In an email, Loff wrote that the group is celebrating the bill’s passage.

“It protects the tools that local governments have at their disposal to protect flows — both recreational and environmental — which were threatened by the broad language in the (Supreme Court) case. Recreational and piscatorial uses are most definitely beneficial and we are happy to see those protected.”