Here’s the release from the Colorado Water Conservation Board (Sara Leonard):
On March 17, amended rules governing the Colorado Water Conservation Board’s (CWCB) Instream Flow and Natural Lake Level Program became effective.
The amended rules create additional tools and expand CWCB’s authority regarding temporary loans of water rights to the agency for instream flow use, including the ability to improve the natural environment, and allowing loans to be renewed for two additional 10-year periods, among other features.
The rule revisions implement Colorado House Bill 20-1157, sponsored by Senator Kerry Donovan and Representatives Dylan Roberts and Perry Will. On January 26, 2021, CWCB held a rulemaking hearing at which public comments were heard and the CWCB ultimately adopted the amendments to its existing rules.
“The CWCB staff is looking forward to working with the water community on both expedited and renewable loans, and appreciates having additional tools for protecting flows in Colorado’s streams,” said Linda Bassi, CWCB Stream and Lake Protection Section Chief.
Imposing hefty taxes on speculative water sales, requiring that water rights purchased by investors be held for several years before they can be resold, and requiring special state approval of such sales are three ideas that might help Colorado protect its water resources from speculators.
The ideas were discussed Wednesday at a meeting of a special work group looking at whether Colorado needs to strengthen laws preventing Wall Street investment firms and others from selling water for profit in ways that don’t benefit the state’s farms, cities and streams.
The anti-speculation group was created last year by lawmakers and is charged with reporting back to them this August.
As prices for Colorado’s water have soared and Wall Street firms and others have begun buying up agricultural lands and their associated water rights, concern is rising that the state could lose control of its vast, though heavily used, streams and rivers.
“It’s a tough nut to crack,” said Joe Bernal, a rancher and work group member from the Grand Valley on the West Slope, where hedge funds are actively buying land and water.
Water has always been a scarce resource in Colorado. In the 1800s, as miners and farmers were moving in, the courts developed a system so that no one could hoard water, drive up its price, and profit from its sale. To combat the problem, they required that water rights be granted only to those who could put them to beneficial use, whether in farm fields or mines, or in people’s homes and businesses.
Under state law, water is considered a public resource. The legal right to claim it and use it for some beneficial purpose, such as farming or manufacturing or municipal use, must be approved in water court. Once obtained, water rights are considered a private property right and can be bought and sold, again with approval from the courts.
Colorado already has some of the strictest anti-speculation laws in the West.
But the rise in water prices and the purchase of water-rich farms and ranches on the West Slope by deep-pocketed, out-of-state investment firms, as well as in-state efforts to export water from the San Luis Valley, prompted lawmakers in late 2019 to call for more work on the issue.
The work group has yet to make any formal recommendations, but Alex Davis, an attorney for Aurora Water and work group member, said new ideas have to be considered because Colorado’s existing laws were written more than 100 years ago, long before hedge funds existed.
“This idea of appropriating water rights and not using them, we have that covered,” Davis said. “It’s well prevented by the laws that exist. It’s the financial speculation that we’re focused on here. How do you prevent it? It’s a very difficult question.”
Imposing a hefty tax on any profits made in a speculative sale, similar to a capital gains tax, could serve as a disincentive to investors, Davis said.
Still another work group member, Adam Reeves, an attorney with the Denver- and Durango-based firm Maynes, Bradford, Shipps and Sheftel, said forcing certain investors to hold onto water rights for several years before being allowed to sell them again could provide another powerful disincentive.
Still others suggested some kind of state approval by existing water courts or other state authorities could be required, effectively limiting any sales deemed speculative.
But key to any of these tools is defining what is and isn’t speculation.
“What are the criteria by which you determine that ‘x’ investment is speculative and ‘y’ investment is not?” Davis asked. “Any time anyone purchases an asset it’s an investment…when does it become an investment that is problematic or predatory? Is a Colorado billionaire different than a New York billionaire?”
Bernal said any definition of speculation should consider whether transactions in which cities are buying agricultural water with an intent to permanently remove it at some future date to serve a growing population could also be considered speculative and therefore subject to some limitation.
“The concern we all have here is where it might go and who will end up with it. Is it right, is it proper that it go to large municipalities?” Bernal asked. “Why are some of these transactions bad because of who they involve, and what limitations do we put on these transactions, and how does that affect people who’ve owned the water traditionally? Is there something we need to do that doesn’t interfere with private property transactions?”
Work group member Peter Fleming, a water attorney for the Glenwood Springs-based Colorado River District, said the state should be careful not to limit investment in ways that are harmful.
“There is no risk to Coloradans from a non-speculative investment in water,” Fleming said. “We need that to increase productivity and maximum utilization of the state’s water resources.”
The work group has six months to finish its research and craft recommendations for lawmakers to consider later this summer.
The group plans to meet next in March, though a date has not yet been set.
Jerd Smith is editor of Fresh Water News. She can be reached at 720-398-6474, via email at firstname.lastname@example.org
Here’s the release from Colorado Parks and Wildlife (Rebecca Ferrell):
On November 3, Colorado voters passed Proposition #114 – The Restoration of Gray Wolves, a measure directing the Colorado Parks and Wildlife Commission to develop a plan to reintroduce gray wolves west of the Continental Divide. The passage of Proposition 114 has led to increased interest in wolves in Colorado, specifically, the wolf pack previously confirmed to be present in Moffat County.
The gray wolf remains under the management control of the U.S. Fish and Wildlife Service until at least January 4, 2021, when the proposed removal of Endangered Species Act (ESA) protections would take effect. At this time, CPW continues to monitor the area and take sighting reports and game camera images from citizens, sportspersons and others on the ground.
“The federal delisting discussion has caused some confusion in the state about the status of gray wolves in Colorado,” said Dan Prenzlow, director of Colorado Parks and Wildlife. “Regardless of the USFWS listing status, gray wolves remain listed as a state endangered species, and killing a wolf in Colorado for any reason other than self-defense remains illegal.”
While protected under the ESA, killing a wolf in Colorado can result in federal charges, including a $100,000 fine and a year in prison, per offense. As the gray wolf remains a state endangered species, severe penalties will still apply when CPW regains management control in the state.
Wolves are elusive in nature, making visual confirmation more challenging than some other species. Despite this, game camera images, as well as tracks and fur, have been detected in the field throughout the summer and into November.
“As recently as last week we have confirmed the presence of wolves in Moffat County via pictures and recorded howling. Staff will continue monitoring the area as part of our overall wildlife management and conservation duties, and we will share information when we have updates or can help clear up any misunderstanding of wolf activity in Colorado,” said Prenzlow.
The public is urged to contact CPW immediately and fill out a report if they see or hear wolves or find evidence of any wolf activity in Colorado. The Wolf Sighting Form can be found on the CPW website.
At the November 19, 2020, Colorado Parks and Wildlife Commission meeting, the commission discussed their next steps in undertaking the planning efforts directed by Proposition 114. To stay updated on wolves in Colorado, visit the wolf management page of our website.
Colorado’s anti-speculation water laws are considered some of the toughest in the West. Still, state lawmakers worry those laws may not go far enough. That’s why an 18-member work group is exploring ways to strengthen the rules. Recommendations for proposed changes are due by August 2021.
“In my mind, I think speculation is going on,” says Sen. Don Coram, a Republican who represents several Western Colorado counties and who co-sponsored SB20-048, which directed Colorado’s Department of Natural Resources to form the work group. “There are situations that are just not meeting the smell test for me. We need to look under the tent and see what’s going on.”
With water demand and prices soaring, lawmakers worry about loopholes in Colorado’s anti-speculation laws, pointing to recent investment group purchases of farmland and their senior water rights on the West Slope and in the San Luis Valley. So far, the investors are using the water for irrigation, a legally beneficial use, but lawmakers worry they’re making a speculative play, banking on a massive increase in the value of those rights with the intention to profit from them in the future. Irrigation may just be an interim placeholder that’s part of a larger investment strategy.
So, how will the work group’s members make recommendations for improvement? They’ll likely start with a thorough history lesson and a deep dive into existing anti-speculation law, says Kevin Rein, Colorado’s state engineer. Rein leads the group alongside Scott Steinbrecher, a Colorado assistant deputy attorney general. Other participants include water engineers, attorneys, members of the Colorado Water Conservation Board, farmers and ranchers, representatives of environmental nonprofits, and water managers. Given the diversity of group members and knowledge, the group is well-poised to tackle the challenge at hand, Rein says.
But some work group members are already contemplating how changes to Colorado water law could hurt landowners. Joe Frank, general manager of the Lower South Platte Water Conservancy District in northeastern Colorado, plans to participate in the work group with an open mind but has questions: How will the changes impact an irrigator’s ability to sell their water and land? Will the value of their land or water suffer because of these changes?
“There’s this tension here, especially in our basin, but also statewide, of a high demand for water, which inflates the value of it—it’s hard to blame farmers for wanting to sell their water because of all different kinds of circumstances,” Frank says. “We would prefer them to keep their water and stay in agriculture because that’s the economic base for our area. But you can’t just go say, ‘We’re going to put a stop to it.’ Now you’re impacting somebody’s property rights.”
Frank said he also has some questions about the constitutionality of any changes the group may propose.
“I do have some reservations about whether this will actually solve a problem without causing another one,” he says. “You don’t want to cause unintended consequences here.”
Sarah Kuta, a Nebraska native and graduate of Northwestern University, is a freelance writer based in Longmont, Colo.
High Plains A&M LLC filed two almost identical applications for changes of water rights in late 2002 and early 2003. The Water Court consolidated the two cases. In its Applications, High Plains claimed to own or control of about 30% of the shares in one of the largest irrigation systems in Colorado. High Plains asked the Water Court to approve changes to its water rights from irrigation and other decreed uses in the lower Arkansas River Valley to any beneficial use, including over fifty identified potential uses, in any location within twenty-eight Colorado counties. High Plains’ applications did not identify any end users of the water besides the farmers who currently use the water. In High Plains A&M, LLC v. Southeastern Colorado Water Conservancy District, 120 P.3d 710 (Colo. 2005), Burns, Figa & Will, P.C., on behalf of our client, the Southeastern Colorado Water Conservancy District, successfully argued that High Plains’ application for a change of water right was properly dismissed because the application did not state with specificity the use or location of use of the changed water rights, thus violating Colorado’s anti-speculation doctrine.
After more than three days of uncertainty, CNN and the Associated Press have declared Joe Biden the winner of the 2020 presidential election. It wasn’t the landslide Democrats had hoped for.
At the beginning of the night on Tuesday, it looked like election forecasts that had predicted a blue wave were plagued by a 100 percent margin of error. But as time went on and mail-in ballots rolled in, the former vice president steadily edged ahead of incumbent Donald Trump in Georgia and Pennsylvania. The Keystone State finally pushed Biden over the 270 electoral vote mark. At about 11:30 a.m. on Saturday, Biden finally claimed victory.
Biden’s win marks the beginning of the end of one of the most environmentally damaging terms in United States presidential history. During his nearly four years in office, Trump successfully rolled back dozens upon dozens of environmental protections, dismantling Obama’s climate legacy with a vengeance.
His anti-environment agenda began in earnest with a vow to withdraw the U.S. from the Paris Agreement (a move Biden has promised to reverse once he’s in office — something easier said than done). Since 2017, Trump has sought to remove safeguards from treasured national monuments, made life more dangerous for some very good looking birds, tried to force states to relax their fuel efficiency standards, repealed Obama’s Clean Power Plan, and made it easier for coal-fired power plants to pollute nearby water supplies, among many, many other regulatory changes. Under his leadership, career scientists at the Environmental Protection Agency, the Department of the Interior, the United States Department of Agriculture, and other federal agencies have resigned — citing industry meddling, internal pressure to withhold scientific findings, and other factors more evocative of a Soviet-era Russian government than a 21st-century American one.
It’s likely that Trump will continue dismantling the nation’s environmental protections until January 20. But the good news is there is now an end in sight. The next administration aims to be the polar opposite of the Trump administration on most issues, and especially the environment.
Biden’s $2 trillion climate plan is a cheaper version of what Green New Deal advocates have been publicly pushing for since February 2019. The plan calls for a massive investment in renewable energy, emissions technology, green jobs, and environmental justice. Ahead of the election, Biden surrounded himself with a diverse group of climate advisors, seeking input from Varshini Prakash, the co-founder of the youth-led climate group the Sunrise Movement, former Secretary of State John Kerry, and the Green New Deal co-mastermind herself, Representative Alexandria Ocasio-Cortez of New York.
In the final days of his general election campaign, Biden did what few other presidential candidates have done by making climate change one of his main closing arguments. His campaign pushed out climate ads in Michigan, on cable TV, and on Twitter. At the final presidential debate in Nashville, Biden made history by promising to “transition” the U.S. off of oil (something Trump thought, incorrectly, would tank the Democrat’s favorability).
During the Democratic presidential primary, Biden went from forgotten underdog to presidential nominee in a matter of months. In the general election, he bested Trump despite the incumbent’s ferocious and unyielding offensive strategy. Next up? The most difficult hurdle yet: getting comprehensive climate policy through Congress, possibly without the aid of a Democratically controlled Senate.
The planet needed a big win, and from the top to the bottom of the ballot there were a number of crucial victories.
Election Day 2020 — the day before the United States officially left the Paris climate agreement — didn’t deliver an immediate rebuke to President Trump or relief for environmentalists.
That would have to wait.
“The election hasn’t produced the outcome that the planet badly needed,” Bill McKibben of 350.org summed up in The New Yorker the following day.
But as the votes continued to be counted in battleground states, the mood shifted from despair to hope, and finally, on Nov. 7, to celebration when Joe Biden and Kamala Harris were pronounced victors.
So much was riding on this election — and not just in the United States.
“There is no pathway to meaningful global climate action without our federal government playing a prominent part,” wrote Mary Annaïse Heglar in The New Republic just before the election.
A Biden-Harris victory doesn’t undo all the environmental harm caused by the Trump administration and its 125 rollbacks of environmental protections, but it provides a much-needed opportunity to restore scientific integrity and take action on climate change, environmental justice, biodiversity and other pressing concerns.
That’s good news. And looking down the ballot there were also other environmental victories — as well as some places where ground was lost. Here are the biggest takeaways:
The Good Stuff
Few big-ticket wins were clear early except for the fact that Democrats held onto the House of Representatives — an expected but not inconsequential victory. And although their majority slimmed, several new additions will be a boon for environmental issues.
One of those is progressive Cori Bush, who cruised to victory in Missouri’s 1st congressional district. She’s the first Black woman from the state to be elected to Congress. The nurse, pastor and Black Lives Matter activist is also a Green New Deal supporter.
In gubernatorial fights, Washington’s climate champion Jay Inslee won re-election. So did Democrat Roy Cooper in North Carolina, which E&E News called a significant victory in the state’s push for clean energy.
Mark Kelly flipped a Senate seat blue in Arizona, and so did John Hickenlooper in Colorado.
Hickenlooper, a booster of the fracking industry during his time as Colorado governor, is not exactly beloved by environmentalists in the state. But his defeat of Cory Gardner was hailed by the League of Conservation Voters, which called Gardner one of “worst anti-environmental candidates” running this year. It was also the first time in 84 years that Democrats swept all statewide races in Colorado.
Along with those victories came one for wolves, too. Colorado voters passed Proposition 114, which will require the state Parks and Wildlife department to develop a restoration and management plan for the reintroduction of gray wolves. It comes less than a week after the Trump administration removed federal protection from gray wolves across the country.
In other statewide races, Nevada’s Question 6, which would require electric utilities to get 50% of their electricity from renewables by 2030, was approved by voters. But how much that helps the state’s clean energy future is a matter of debate. Nevada has already passed similar legislation. Enshrining this benchmark into the state constitution could help protect it from future rollbacks — or it could make efforts to raise the target even harder.
Much further down the ballot, climate champions made gains in city council positions in major cities such as Los Angeles, Phoenix, San Diego, San Jose, San Francisco and Portland.
Denver also approved an increase in sales tax to help fund climate and clean energy initiatives. And Columbus, Ohio passed a measure that would help the city secure more locally sourced renewable energy.
“City leadership is important for advancing climate action but new research finds U.S. cities falling behind,” Daniel Melling, communications manager for the UCLA Emmett Institute on Climate Change and the Environment, wrote for Legal Planet.
The Bad Stuff
An anticipated, decisive retaking of the Senate by Democrats never materialized, and whether it remains in Republican hands won’t be decided for bit. Two Georgia races are headed to a January runoff.
If Republicans do hang on to the Senate, that will mean any bold new climate legislation — or likely any meaningful environmental legislation at all — coming out of the House will be stymied, especially if Mitch McConnell retains his role as Senate leader.
Meanwhile several Republican senators with dismal environmental records will be back, including Iowa’s Joni Ernst, Mississippi’s Cindy Hyde-Smith, Alabama’s Tommy Tuberville and Roger Marshall from Kansas. Lindsay Graham, who has a mixed at best record when it comes to climate legislation, also returns.
While Colorado may have seen a blue wave, Montana was awash in red. A Republican sweep across the state included a victory by coal-industry ally Greg Gianforte, who took the governor’s mansion out of control of Democrats for the first time in 16 years.
Gianforte previously said he “would advocate as governor for increased port capacity on the West Coast to get coal to market,” reported E&E News. Montana coal production fell 21% during the pandemic.
“Montana didn’t just go Republican on Tuesday,” wrote Gwen Florio in The Nation. “It went deeply conservative Republican.” The effect of that will be felt not just on energy policy, but the fate of public lands and wildlife, including sage grouse and grizzlies.
In a new low, Marjorie Taylor Greene of Georgia became the first QAnon conspiracy theory believer elected to Congress. In addition to a record of racist statements, she ran on a platform that included blocking the Green New Deal.
Democrats had hoped to make a small gain in Texas. But even $2.5 million in backing from Michael Bloomberg couldn’t get Democrat Chrysta Castañeda elected to the Texas Railroad Commission, which oversees issues related to oil and gas — a state race that has worldwide impact.
The race was won by Jim Wright, whom the Huffington Post describes as “a hardcore climate change denier and owner of an oil-field services company.”
The oil industry may have also garnered a victory in Alaska. There Measure 1, which would raise taxes on some North Slope oil companies, is trailing by a wide margin.
But when you tally it all up at the end of the day — or week, really — even McKibben had to concede that overall things are looking up.
“It could have gone much better,” he wrote on Nov. 7. “(Specifically, a deadlocked Senate will make action on the dominant issue of our lifetimes, climate change, more difficult to address than it should be.) But it went.”
FromThe Grand Junction Daily Sentinel (Dennis Webb):
The Colorado Department of Natural Resources on Wednesday held the first meeting of the Anti-Speculation Law Work Group. The task force was established as a result of passage of a bill this year to consider ways to strengthen the current anti-speculation law and recommend any changes to a legislative committee by Aug. 15 .
The bill was sponsored by state Reps. Dylan Roberts, D-Avon and Marc Catlin, R-Montrose, and Sens. Kerry Donovan, D-Vail, and Don Coram, R-Montrose. It was inspired by a growing number purchases of agricultural land and associated water rights by investment firms, including wide-scale purchases in the Grand Valley by Water Asset Management, which is based in New York.
Current state law prohibits water speculation by requiring water to be used for a beneficial purpose. An 18-member work group made up of state agency staff, water lawyers and others will be considering how the law might be tightened.
None of the bill sponsors participated in Wednesday’s meeting. But Scott Steinbrecher, an assistant deputy attorney general co-chairing the task force, said a clear purpose of the bill is to examine how the law should be strengthened to prevent situations where water rights are bought and leased back to farmers though the intent is to use the water like an investment.
Alex Funk, a task force member who is an agricultural water resource specialist with the Colorado Water Conservation Board, a state agency, voiced concern about approaches that might limit the value of assets to agricultural producers.
“There is certainly a tension here where land and water assets are extremely valuable to producers. In some cases these are sort of their only asset,” he said…Task force member Peter Fleming, general counsel for the Colorado River District, which has been watching some of the area water-related acquisitions by investment firms with concern, said agricultural producers looking to sell their assets are entitled to do that.
“I assume we don’t want to prevent that from happening,” he said.
He said what’s important under even the current law is the intent of the buyer of water rights. He said they can profit from the water’s use but their end goal in buying rights can’t be the pure value of the water, and he’s interested in looking at ways to determine intent.
Daris Jutten, a rancher in the Uncompahgre Valley, said his interest in serving on the task force is considering impacts on property rights.
“I want to keep the land value prices where they are but I also don’t want to see buy and dry,” he said.
He was referring to situations in which transactions result in water no longer being used to irrigate agricultural land and instead going for other uses such as by municipal utilities.
Task force member Joe Frank, general manager of the Lower South Platte Water Conservancy District, said the district sees entities buying up water there with the intent to dry up land in the future.
“In addition to that we do have those who want to sell, so water is a property right. … It’s a dilemma, but we don’t want to impact people’s property rights,” he said.
Here’s the release from the Colorado Department of Natural Resources:
The Department of Natural Resources released the names of a 18-member Anti-Speculation Law Work Group (Work Group) whose objective is to explore ways to strengthen current Colorado water anti-speculation law. The Work Group arose out of passage of Senate Bill 20-048 sponsored by Senators Donovan and Coram and Representatives Roberts and Catlin and signed by Governor Polis on March 11, 2021.
“I’m encouraged by the participation in the Work Group, which represents diverse stakeholders from all across the state,” said Dan Gibbs, Executive Director, Colorado Department of Natural Resources, who appointed the Work Group members. “Our goal is to have a transparent and thoughtful process over the next year.”
Senate Bill 20-048 requires the Executive Director of the Colorado Department of Natural Resources to convene a work group to explore ways to strengthen current anti-speculation law and to report to the water resources review committee by August 15, 2021, regarding any recommended changes. Colorado water law prohibits speculation by requiring water to be used for a beneficial purpose.
The Work Group will be co-chaired by Kevin Rein, State Engineer, and Scott Steinbrecher, Assistant Deputy Attorney General. Meetings will be noticed to the public via the Colorado Water Conservation Board website and will be open to the public. Meeting summaries will be posted publicly, and opportunities will be available for the public to review and comment on the recommendations of the Work Group before the written report is finalized.
The Work Group membership consists of:
Kevin Rein (Co-Chair), State Engineer, Division of Water Resources
Scott Steinbrecher (Co-Chair), Assistant Deputy Attorney General, Attorney General’s Office
Tracy Kosloff, Deputy State Engineer, Division of Water Resources
Erin Light, Division 6 Engineer, Division of Water Resources
Lauren Ris, Deputy Director, Colorado Water Conservation Board
Amy Ostdiek, Deputy Section Chief, Colorado Water Conservation Board
Alex Funk, Agricultural Water Resource Specialist, Colorado Water Conservation Board
Justice Gregory Hobbs Jr., Colorado Supreme Court Justice (ret.)
Joe Bernal, Bernal Farms
Daris Jutten, Lazy K Bar Land and Cattle Co.
Joe Frank, General Manager, Lower South Platte Water Conservancy District
Larry Clever, General Manager, Ute Water Conservancy District
Alex Davis, Water Resources Division Manager, Aurora Water
Peggy Montaño, Trout Raley
Peter Fleming, General Counsel to the Colorado River District
Adam Reeves, Maynes, Bradford, Shipps and Sheftel LLP
Drew Peternell, Colorado Director, Trout Unlimited
Kate Ryan, Senior Attorney, Colorado Water Trust
The first meeting of the Work Group will be held virtually this fall.
HB 20-1095 Concerning the authority of local government master plans to include water conservation policies. This bill requires a local government master plan containing a water supply element to also include water conservation polices, which will be determined by the local government. These policies can include goals specified in the Colorado Water Plan; policies can also condition development approvals for subdivisions, planned unit developments, special use permits, and zoning changes on the implementation of water conservation goals and other Colorado Water Plan goals. Additionally, the Department of Local Affairs is authorized to hire a full-time employee to provide educational resources and assistance to local governments that include water conservation policies in their master plans.
SB 20-155 Concerning keeping the presumption of noninjury for a well on divided land. This bill maintains the rebuttable presumption that domestic use of a well exempt from the state engineer’s administration will not cause material injury to others’ vested water rights or to any other existing wells in the event the land on which the well is located is later divided into multiple parcels, provided that well use meets certain requirements.
SB 20-048 Concerning a study to consider the strengthening of the prohibition on speculative appropriations of water. Current law prohibits speculative water appropriation. Speculation may be evidenced where an applicant does not have (i) a legally vested interest or a reasonable expectation of procuring a legally vested interest in the lands or facilities to be served by the appropriation, unless the appropriator is a governmental agency or an agent for those proposed to benefit from the appropriation; or (ii) a specific plan and intent to divert, store, or otherwise capture, possess, and control a specific quantity of water for specific beneficial uses. This bill requires the executive director of the Department of Natural Resources to convene a work group to explore methods for strengthening current anti-speculation law. This group will report any recommended changes to the Water Resources Review Committee in August 2021.
From email from the Colorado Water Conservation Board (Rob Viehl):
The CWCB staff has drafted proposed revisions to the Rules Concerning Colorado’s Instream Flow and Natural Lake Level Program (“ISF Rules”). The revisions to the ISF Rules will: (1) address the rulemaking requirements of HB20-1157; (2) update a reference to the CWCB’s website; and (3) update references to Colorado Parks and Wildlife.
Staff will hold its second informal stakeholder meeting on Tuesday, August 18, 2020 from 1:00 p.m. – 3:00 p.m. to discuss the draft ISF Rules revisions, which are posted on the CWCB website . Staff intends to post a second draft of ISF Rules revisions by the end of this week, and invites interested parties to submit written comments on the draft ISF Rules revisions by emailing them to email@example.com. Note that any comments received will be posted on the CWCB website . At the meeting, CWCB staff and attendees will discuss the draft ISF Rules revisions, comments received, and comments expressed at the meeting. If you have questions, contact Linda Bassi at firstname.lastname@example.org or (303) 866-3441, ext. 3204.
This meeting is a pre-Colorado Water Congress Conference Workshop for which no registration is required. The Colorado Water Congress Conference kicks off on Tuesday, August 25th at 12:00 p.m.
Water Congress will hold a virtual summer meeting beginning August 25 and will continue for 4 weeks. Sessions will be on Tuesdays and Thursdays starting at noon with each one running 60 to 75 minutes. More information on specific topics and related workshops will be released in the upcoming weeks.
From email from the Colorado Water Conservation Board (Rob Viehl):
The CWCB staff has drafted proposed revisions to the Rules Concerning Colorado’s Instream Flow and Natural Lake Level Program (“ISF Rules”). The revisions to the ISF Rules will: (1) address the rulemaking requirements of HB20-1157; (2) update a reference to the CWCB’s website; and (3) update references to Colorado Parks and Wildlife.
Staff will hold an informal stakeholder meeting on Monday, August 3, 2020 from 1:00 p.m. – 4:00 p.m. to discuss the draft ISF Rules revisions. Staff invites interested parties to submit written comments on the draft ISF Rules revisions by emailing them to email@example.com. Please submit comments by COB on July 29, 2020. Any comments received by that date will be posted on the CWCB website prior to the August 3 meeting. Written comments may be submitted after July 29, 2020, but might not be posted on the website prior to the August 3 meeting. At the meeting, CWCB staff and attendees will discuss the draft ISF Rules revisions, comments received prior to the meeting, and comments expressed at the meeting. If you have questions, contact Linda Bassi at firstname.lastname@example.org or (303) 866-3441, ext. 3204.
2020 has been a tumultuous year, and as we enter our fifth month of quarantine and social distancing, it can be encouraging to find things to celebrate. With the close of Colorado’s legislative session last month and Governor Polis finalizing his bill signings, one thing that we can laud is the work that was accomplished for our rivers. Even though the Colorado General Assembly struggled to fully address a more than $3 billion budget shortfall, they maintained and expanded programs and investments necessary to keep our rivers flowing, and this is something we can be proud of.
In March, Governor Polis signed two bills into law that expand and improve Colorado’s instream flow program. These bills, HB20-1157 and HB20-1037, provide new tools for water users and conservationists to work together to keep water in rivers for the benefit of fish and wildlife. HB20-1157 will be a particularly important tool for the Yampa River Fund which provides grants to improve the health of the Yampa River, including through leases of water from Stagecoach Reservoir to enhance late-season fish habitat, agriculture, and to benefit the local tourism and outdoor recreation economy.
Colorado also made a new commitment to improve water conservation in our cities and towns. The Colorado Water Plan, finalized in 2015, sets a goal of achieving 400,000 acre-feet of municipal and industrial water conservation savings by 2050. The way that we plan and build our cities and towns contributes to how we use water, how much we use, and how quickly demands grow for new supplies. The new law, HB20-1095, authorizes local governments to include water conservation elements into their master plans, thereby encouraging local governments to combine their land and water use planning to accelerate the state toward its 400,000 acre-foot conservation savings goal.
While budgets were slashed statewide, fortunately funding for the implementation of Colorado’s Water Plan was maintained. Over $7 million was included in the Colorado Water Conservation Board budget for Water Plan implementation grants or water projects across the state, and an additional $4 million was allocated to invest in stream and watershed management planning efforts to keep rivers healthy and flowing. We appreciate the state’s continued recognition of the importance of clean rivers and drinking water for all Coloradans and hope that this commitment continues.
Just over six months ago, voters demonstrated their own commitment to healthy rivers and water supplies by legalizing sports betting and directing tax revenues to fund the implementation of Colorado’s Water Plan. As sports begin to start back up, we urge the General Assembly to respect the will of the voters and ensure this tax revenue is directed, as intended, to Water Plan implementation.
While we celebrate these wins for Colorado’s waterways, we recognize there is still more work to be done.
In June, the Trump administration issued rules that significantly reduce protections for Colorado’s rivers and wetlands under the Clean Water Act, leaving many previously protected waterways in limbo. The new federal rule leaves one out of every five stream miles in Colorado, including half of the state’s wetlands, unprotected from construction activity discharges. Thanks to a lawsuit led by Colorado Attorney General Phil Weiser, the rule has been temporarily blocked pending resolution, which maintains protections for our state’s waterways—for now.
Regardless of the outcome in court, it is time for Colorado to ensure that its rivers and wetlands will always be protected from destructive dumping and discharges. The Water community is coming together—virtually—this summer to try to find some common ground on this issue and we plan to bring a solution before the General Assembly for the 2021 legislative session.
While 2020 seems to be the year of one bad headline after the next, we are heartened by the work of our state legislature and government to make positive strides toward safeguarding our water future.
Gov. Jared Polis held five bill-signing ceremonies Monday, June 29, across Colorado for 14 bills. Topics ranged from employee benefits to education to grants, but several stuck out as directed at rural and mountain communities like Summit County…
The Rural Economic Development Initiative Grant Program, is more wide-reaching. The Colorado Legislature site says the grants would be for projects that create new jobs, specifically for “projects that create diversity and resiliency in the local economies of rural communities.” These jobs can be created through a new employer or the expansion of an existing employer, including local governments and organizations or individuals working in partnership with a local government.
“The Rural Economic Development Initiative is critical to helping rural communities with less than 20,000 people plan and invest in local projects to create jobs and economic opportunity,” Polis said at the press conference…
Polis also signed conservation bills Monday, including the Colorado Water Conservation Board Construction Fund Project. The bill provides funding for certain projects, such as the Colorado water loss control initiative or the watershed restoration program.
Summit County Commissioner Karn Stiegelmeier described the bill as “complicated but collaborative” and focused on a lot of big-picture projects. She added that some of these projects will impact Summit County, including one piece of the bill that designates funds to snowmaking.
Now that the money is allocated, Stiegelmeier said there are lots of “projects on the ground” that could receive funding. She said the county has applied for funding through its Open Space & Trails department before and that the Blue River Integrated Management Plan and the Swan River Reclamation Project have received funding.
Polis signed the following bills Monday, June 29:
House bill 20-1119: State Government Regulation of Perfluoroalkyl and Polyfluoroalkyl Substances
Senate bill 20-026: Workers’ Compensation for Audible Psychological Trauma
SB20-057: Fire Prevention and Control Employee Benefits
HB20-1184: Sunset Colorado Seed Act
SB20-002: Rural Economic Development Initiative Grant Program
SB20-030: Consumer Protections for Utility Customers
HB20-1229: Peace Officers Standards and Training Board Scholarship Rural and Small Law Enforcement
SB20-003: State Parks Improvement Appropriation
HB20-1403: Colorado Water Conservation Board Construction Fund Project
SB20-201: Species Conservation Trust Fund Projects
HB20-1366: Higher Education Funding Model
HB20-1109: Tax Credit Employer Contributions to Employee 529s
SB20-095: Middle School Students Concurrent Enrollment Information
HB20-1424: Social Equity Licensees in Regulated Marijuana
Here’s the release from Colorado Parks and Wildlife (Bill Vogrin):
In a sun-soaked open space flanked by 9,633-foot Fishers Peak, Gov. Jared Polis signed into law Monday a bill that provides $1 million to support Colorado Parks and Wildlife’s development of Colorado’s next state park.
Polis called the funding critical toward achieving his goal of CPW opening the 19,200-acre park to the public as the 42 state park.
The governor also called the next state park an economic engine that will drive the economy of Trinidad and the region as he signed Senate Bill 3 in front of a small group of lawmakers and dignitaries including Dan Gibbs, Executive Director, Department of Natural Resources, and CPW Director Dan Prenzlow.
“This is a big day because developing our 42nd state park is not as simple as opening the gates and inviting the public,” Prenzlow said. “CPW parks staff, wildlife and aquatic biologists, engineers, wildlife managers and all our partners are deep into the process of transforming this former ranch into a showplace for all who might want to recreate here.
“CPW staff is committed to meeting the governor’s challenge to open this park by 2021 by accelerating the designing and construction of state parks from a multi-year process down to a single year. This funding will help us expedite the process. I’m confident when we finally open these gates, the public will be thrilled at the park that will greet them.”
Gibbs and Prenzlow were joined by Representatives Daneya Esgar and Perry Will, local government and business officials from Trinidad and Las Animas County as well as leaders of CPW’s non-profit partners The Nature Conservancy (TNC), The Trust for Public Land (TPL) and Great Outdoors Colorado (GOCO), each playing a critical role in the purchase of the Fishers Peak property.
“We could not have gotten this far without the hard work of our partners from GOCO, the City of Trinidad, TNC and TPL,” Prenzlow said. “Nor could this happen without our partners in the Legislature and in the hunting and fishing communities who provided millions in revenue from hunting and fishing license sales.”
In February 2019, CPW partnered with the City of Trinidad, TNC, TPL and GOCO to purchase the mostly undeveloped property, prized for its variety of habitat, wildlife and the linkage it provides between grasslands to the east with foothills and mountains to the west.
On April 2, the partners signed over ownership of the property to CPW and the agency, with its partners, immediately ramped up master-planning efforts to create a park that will protect the natural treasures and wildlife found there while welcoming visitors, including hunters, hikers, mountain bikers, wildlife watchers and other outdoor enthusiasts.
For months, biologists have been combing the property to inventory the flora and fauna. Among their discoveries was the presence of the endangered New Mexico meadow jumping mouse. In 2014, the mouse was listed as an endangered species by the U.S. Fish and Wildlife Service due to loss of habitat and low population numbers.
Bird surveys continue and are going well; biologists believe they have found a potential golden eagle nest as well as a nesting pair of peregrine falcons. They also report owl sightings.
Herptile surveys have found an unusual lizard species, a variable skink, making the property likely the only state park with this species.
Biologists have also deployed dozens of trail cameras across the property to study everything moving on the ground. There’s even coordinated weed-mapping underway with experts studying plants to formulate the appropriate seed mixture to use when landscaping areas of the park.
The information gathered will then be combined with research into the archaeological and cultural history of the property. Next comes the public process as planners gather input to set management goals for the property and design recreation areas that include roads, parking lots, restrooms, picnic areas, trails and wildlife-viewing areas for the public to enjoy.
In recent weeks, crews have begun grading and laying gravel on a new access road and parking lot.
Installing vault toilets is expected to be completed in the coming days. To stay informed on continuing progress of the park, please sign up to receive CPW eNews emails or visit cpw.state.co.us.
Here’s a report from Jesse Paul that’s running in The Colorado Sun. Click through and read the whole article for somme of the details of the bill. Here’s an excerpt:
Gov. Jared Polis signed Senate Bill 217 at a ceremony at the state Capitol on [June 19, 2020], calling it a landmark piece of legislation that speaks to a national moment of reckoning.
Senate Bill 217 was introduced and passed in a matter of two weeks after being introduced in the days after Floyd’s May 25 death at the hands of police officers in Minnesota and as Denver and cities across the nation were being rocked by protests in response.
“This is a long overdue moment of national reflection,” Polis said just before he signed the measure at a ceremony in the Colorado Capitol. “This is a meaningful, substantial reform bill.”
Polis said the bill contains “landmark, evidence-based” changes that he hopes will help build trust between communities and law enforcement. But he said that more work must still be done.
Colorado is one of the first states to take legislative action in the wake of Floyd’s death and demonstrations across the nation.
Also in attendance at the bill signing were Democratic and Republican state lawmakers who worked on the legislation, as well as law enforcement officers and the family and friends of Coloradans killed at the hands of police.
The governor planned the bill signing for Juneteenth, which commemorates June 19, 1865, the day slaves in Galveston, Texas, learned they were free. It was more than two years after President Abraham Lincoln had signed the Emancipation Proclamation and about two months after Confederate General Robert E. Lee had surrendered at the end of the Civil War.
Here’s the release from Colorado Parks & Wildlife (Rebecca Ferrell):
In the closing hours of the 2020 legislative session, Colorado legislators approved $1 million to support efforts to develop Colorado’s next new state park around iconic Fishers Peak near Trinidad.
The Colorado Legislature’s passage of Senate Bill 3 will provide critical funding to help Colorado Parks and Wildlife (CPW) develop trails and infrastructure on the 19,600-acre property that features Fishers Peak, a landmark that towers over Trinidad and guided pioneers along the Santa Fe Trail in the 1800s.
“We extend our sincere gratitude to the Legislature for recognizing the value of investing in Colorado’s state parks,” said Dan Prenzlow, Director of Colorado Parks and Wildlife. “As we’ve all worked through the many challenges of the COVID-19 outbreak, including budgetary challenges, one constant was the ability for people to center themselves a bit in nature while visiting our parks. Having this investment in our next state park will allow us to provide even more of Colorado’s outdoors to our residents and visitors.”
The funding authorized by this bill will support the early stages of the park’s infrastructure development. A master planning process that will guide future development of the park is also underway, involving community stakeholders and additional project partners The Nature Conservancy, Trust for Public Land, the City of Trinidad and Great Outdoors Colorado. While the property is not yet open to the public, CPW’s goal of providing initial public recreational access to a portion of the property by early 2021 remains in place.
“This initial investment in our 42nd state park would not have been possible without the strong advocacy and support of Governor Polis, Senators Leroy Garcia, Dennis Hisey, and Representatives Daneya Esgar and Perry Will, along with the businesses, local governments in Trinidad and Las Animas County and our non-profit partners,” said Dan Gibbs, Executive Director, Department of Natural Resources. “We came together during a difficult year to provide needed resources to move forward on what is going to be a signature and our second largest state park. I can’t wait to climb the flanks of Fishers Peak or try new mountain bike trails of this fantastic amenity which will serve as a draw for visitors and recreationists alike to explore the Park and other attractions of this incredible region of Southern Colorado.”
Though Senate Bill 3 has undergone several iterations as the state made adjustments for the costs of the COVID-19 pandemic, Gov. Jared Polis, the Colorado Department of Natural Resources and Colorado Parks and Wildlife remain committed to creating a state park with input from the local community, sportspersons and other conservation stakeholders.
The 9,633-foot summit of Fishers Peak looms over Trinidad. Photo courtesy of Colorado Parks and Wildlife / Bill Vogrin
FromThe Denver Post (Alexander Burness) via The Loveland Reporter-Herald:
The effort to ask Colorado voters to repeal the Gallagher Amendment — a huge potential fiscal reform for a state in budgetary free-fall — took a key step forward Tuesday, receiving the necessary two-thirds vote in the state Senate.
Now it needs two-thirds support in the House, and Rep. Matt Soper, R-Delta, a sponsor, says he is confident he has secured the needed margin. That vote is expected later this week.
Gallagher, named for a former state senator, was initially approved by voters in 1982. It was designed to limit residential property taxation and ensure that business property owners paid a fair share. The calculation built into it is such that the financial impact of the coronavirus will result in substantial property tax cuts if Gallagher remains untouched. Legislative analysts predict K-12 education will lose roughly half a billion dollars, in addition to hundreds of millions of additional losses for local government spending.
Lawmakers want to avert that situation by repealing Gallagher, which many of them view as outdated and inflexible…
One of the main criticisms of Gallagher is that it’s one-size-fits-all, meaning that a recalculation triggered by rising property values in Denver affects rural communities just the same, even when property values there don’t change.
FromColorado Politics (Marianne Goodland) via The Colorado Springs Gazette:
A bill on toxic firefighting chemicals that have contaminated water supplies in southern El Paso County won unanimous support Thursday from the House Finance Committee.
[HB20-1119] was approved by the House Energy and Environment Committee on March 9, before the General Assembly shut down for 10 weeks due to the novel coronavirus pandemic.
According to bill co-sponsor Rep. Lois Landgraf, a Colorado Springs Republican, the measure is a fix of sorts for legislation that passed in 2019 which banned the use of perfluoroalkyl and polyfluoroalkyl chemicals, known collectively as PFAS.
The 2019 law banned Class B firefighting foams that contain “intentionally added” per- and polyfluoroalkyl substances. Those chemicals were used for decades at Peterson Air Force Base in El Paso County and have been found in the Widefield aquifer, which serves Security, Widefield and Fountain, communities near the base…
Last year’s bill created the clean water process for PFAS, Landgraf said. “What we didn’t realize is that it also eliminated the ability of the airports to stay in business. United could not get their insurance because we banned any use of PFAS. They have to practice with it a couple of times every year to keep their insurance in place,” Landgraf said.
This year’s measure allows the testing to take place in airline hangars. The runoff will be captured in catch basins and then disposed of.
The bill also requires a the state’s solid and hazardous waste commission to come up with a certificate for any facility — like an airport — or firefighting department that shows PFAS is present on the premises.
Landgraf said the certificate will help the state track PFAS. “Right now we don’t know who’s using it and not using it,” she said.
The Colorado Aviation Association backs the bill in its current form, according to lobbyist Kelly Sloan, who pointed out that the use of PFAS is on its way out. The Federal Aviation Administration is planning to phase out the use of PFAS at airports, but for now, airports still have to comply with those federal regulations, he said…
The bill now heads to the House Appropriations Committee.
Gov. Jared Polis, even as COVID-19 swept across the state, gave his stamp of approval to five major pieces of water legislation, paving the way for everything from more water for environmental streamflows to a new study on how to limit water speculation.
Lawmakers announced March 13 that they would temporarily suspend work to comply with stay-at-home orders, and now plan to return May 18 to complete the session.
Signed into law in late March and early April, the new measures represent months if not years of negotiations between farm, environmental and legal interests that came to fruition this year thanks to hard-fought bipartisan agreements.
Three of the new laws address water for streams, fish and habitat, allowing more loans of water to bolster environmental flows, protecting such things as water for livestock from being appropriated for instream flows, and using an existing water management tool, known as an augmentation plan, to set aside water rights for streams.
Expanded instream flow loans
House Bill 1157 expands the state’s existing instream flow loan program, which allows a water right holder to loan water to the Colorado Water Conservation Board to preserve flows on streams where the state agency already holds an instream flow water right. The CWCB is the only entity in Colorado that can legally hold such rights, intended to benefit the environment by protecting a stream’s flows from being diverted below a certain level. Under existing law, a loan may be exercised for just three years in a single 10-year period.
The new law, however, expands the loan program by authorizing a loan to be used to improve as well as preserve flows, and increases the number of years it can be exercised from three to five, but for no more than three consecutive years. It also allows a loan to be renewed for two additional 10-year periods.
“This bill becoming law is crucial for our state’s rivers, our outdoor recreation businesses, and downstream agricultural users who depend on strong river flows,” said Rep. Dylan Roberts, D-Avon. After a similar bill he sponsored failed to pass last year, he said, “I knew I needed to work to bring more people to the table and improve the bill so we could garner the support we needed, and that is what we did. I am thrilled that we were able to get this done with strong bipartisan support.”
To ensure protection of existing water rights, House Bill 1157 increases the comment period on loan applications from 15 to 60 days; allows appeal of the State Engineer’s decision on a loan application to water court; and requires the CWCB to give preference to loans of stored water over loans of direct flow water where available.
“There’s no injury to other water uses. And there’s a methodology if someone feels they are injured they can go to the water referee in an expedited manner,” said Rep. Perry Will, R-New Castle and one of the bill’s sponsors.
Protecting existing water uses
House Bill 1159 provides a means for existing water uses, such as water for livestock, that have not been legally quantified to continue when an instream flow right downstream is designated. Current law is unclear as to whether preexisting uses that lack a court decree are protected. To provide clarity, the bill requires the State Engineer to confirm any claim of an existing use in administering the state’s instream flow program.
Augmentation of instream flows
House Bill 1037 authorizes the CWCB to use an acquired water right, whose historic consumptive use has been previously quantified and changed to include augmentation use, to increase river flows for environmental benefits. Farmers have long used so-called augmentation water to help offset their water use, particularly of groundwater, when that use is not in priority within Colorado’s water rights system. Now that same water can be used to boost environmental flows.
Anti-speculation study and water conservation in master planning
Beyond instream flows, Gov. Polis signed Senate Bill 48, which requires the Colorado Department of Natural Resources to form a working group to explore ways to strengthen anti-speculation laws. The agency must report its recommendations to the interim Water Resources Review Committee by Aug. 15, 2021.
Also signed into law was House Bill 1095, which authorizes counties and municipalities that have adopted master plans that contain a water supply element to include state water plan goals and conservation policies that may affect land development approvals.
Larry Morandi was formerly director of State Policy Research with the National Conference of State Legislatures in Denver, and is a frequent contributor to Fresh Water News. He can be reached at email@example.com.
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From Water Education Colorado (Laura Paskus and Caitlin Coleman):
When Water Justice is Absent, Communities Speak Up
Two years ago, a company that analyzes property data crunched the numbers on more than 8,600 zip codes in the United States and found that America’s most polluted neighborhood was in northeast Denver. The study, from ATTOM Data Solutions, shows that Denver’s 80216 zip code, which includes Globeville, Elyria-Swansea and River North, topped its “environmental hazard index.” As of 2017, the U.S. Environmental Protection Agency’s Toxic Release Inventory reported that 22 facilities were still releasing toxic chemicals in 80216, chemicals such as nickel, lead, methanol, creosote and more.
“The neighborhood is parked between gas refineries, the former airport, and then, also, what was at one time an Army base making mustard gas,” says University of Denver law professor Tom Romero, II, who has spent his career dissecting the factors behind environmental injustices in Colorado. There are two Superfund sites and six brownfield sites in 80216, plus the knot of Interstate 70 and Interstate 25 severs the neighborhood from the rest of Denver and increases pollution from highway traffic. The area is also home to a predominantly low-income, Hispanic and Latinx community, says Candi CdeBaca, Denver City Councilwoman for northeast Denver’s District 9.
Last year, CdeBaca became the first person from the neighborhoods to represent on the Denver City Council, ever. She points to an opposition campaign to the Central 70 Project as the beginning of the neighborhood rallying to achieve representation against environmental inequities.
The Central 70 Project broke ground in 2018 to widen the highway through Denver. It will demolish the viaduct that carries I-70 over Elyria-Swansea, replacing it with a below-grade highway. Residents had a list of worries: losing their homes to eminent domain, living even closer to the highway, and unearthing a Superfund site, which they feared would re-expose harmful heavy metals and increase health risks, CdeBaca says.
Their opposition campaign didn’t stop the highway work, but the community came together and won in one sense—the Colorado Department of Transportation will pay for a long-term health study, collecting data to determine whether toxins in the air, soil and water are making residents sick. They also gained a louder voice. “Those losses were the first start of me galvanizing some community power around environmental racism,” says CdeBaca. “Now we have this amplification of groups who never had representation in our government from the neighborhoods that were polluted.” She points to the importance of local voice and representation in all issues, particularly for communities that want to bring about environmental justice. “There is nothing that I support more than activating people power,” CdeBaca says.
With water affordability, access and quality challenges—all of which can translate into health impacts—the role of water in Colorado isn’t always one of fostering healthy communities, yet it could and should be. What contributes to these less-than-whole communities? And what does it take to recognize the issues and how they evolved, address power imbalances, engage the community, and restore equity where it’s been missing?
What is Environmental Justice?
Environmental injustices in Colorado, or anywhere, can span cities and suburbs, sovereign tribal lands, and rural communities. They have their roots in narratives of immigration, development and industry, and political power dynamics, further influenced by evolving legal and regulatory frameworks.
In 1990, EPA Administrator William Reilly created an Environmental Equity Workgroup to assess evidence that “racial minority and low-income communities bear a higher environmental risk burden than the general population.” The agency, which went on to establish an Environmental Equity office in 1992, later changing its name to the Office of Environmental Justice in 1994, defines environmental justice as the “fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation and enforcement of environmental laws, regulations and policies.” It has since expanded to offer a range of programs that provide services from grant funding to technical assistance and training. It also runs a National Environmental Justice Hotline.
Another early definition of environmental justice came from University of Michigan professor Bunyan Bryant, who said it refers to places “where people can interact with confidence that the environment is safe, nurturing and productive. Environmental justice is served when people can realize their highest potential.”
Scholars add additional layers to the term—it’s not just about identifying who is or isn’t harmed but includes some form of restitution, says Kelsea MacIlroy, an adjunct professor and PhD candidate in the sociology department at Colorado State University.
“There are a lot of different ways to talk about justice that aren’t just about who and how but also about a long-term social justice component,” MacIlroy says. “Does the community actually have an authentic seat at the table in addressing the ills?”
80216 may feel it all. “Denver was segregated, and that segregation manifested itself in a variety of ways in terms of water,” Romero says. “It meant that Denver’s communities of color, particularly African Americans and Mexican Americans, were living in close proximity to the areas with heavy industry, where the affordable housing is.” That’s a pattern and practice, he says, that was established in the 20th century and continues today. Many environmental justice cases have similar roots, as repeated practices that ultimately create winners and losers.
When Government Fails
Americans watched one of the most high-profile environmental justice cases unfold in Flint, Michigan, in 2015 and 2016 when corroded lead pipes poisoned the population.
To save money, in April 2014, the city switched its drinking water source and began supplying residents with Flint River water that wasn’t treated under federal anti-corrosion rules. The population was predominantly black, and more than 40 percent of residents were below the poverty threshold. According to the National Institute of Environmental Health Sciences, no level of lead exposure is safe but higher lead exposure leads to more health challenges including anemia, kidney and brain damage, heart disease, decreased IQ and more. In children, the impacts are especially toxic.
Residents began noticing a rusty tint to their tap water in the summer of 2015, but it wasn’t until October 2015 that the governor ordered Flint’s water source switched. By then, though the new water was safe, the plumbing wasn’t—corroded pipes continued to leach lead into drinking water. Bottled water and free faucet filters to remove lead at the point of use were distributed.
More than five years after the crisis in Flint began, the city and its residents are still recovering. The city’s FAST Start program is removing and replacing lead and galvanized steel service lines across the city, but it’s a big, expensive job. FAST Start has been funded with $25 million from the State of Michigan and $100 million allocated by Congress through the Federal Water Infrastructure Improvement for the Nation Act of 2016. As of December 2019, less than 40 percent of the city’s pipes had been replaced, with many residents still relying on faucet filters or bottled water.
Fifteen state and local officials were charged with various crimes, including involuntary manslaughter—some took plea deals and most cases were dropped. Residents now mistrust their water and water providers. That mistrust has flooded the nation, with many more communities now coping with elevated lead levels and lead pipe replacement.
According to the independent Flint Water Advisory Task Force’s final report, released in 2016, breakdowns in protocol, dismissal of problems, and failure to protect people occurred at nearly every level of government. Not only were customers supplied with unsafe drinking water, government officials were slow to acknowledge the problems and rectify the issue by providing safe water. According to the 2016 report, the Flint water crisis is a “story of government failure, intransigence, unpreparedness, delay, inaction, and environmental justice.” Had there been local control of resources and decisions, they write, the problems wouldn’t have occurred in the first place.
Coping with Forever Chemicals
Flint’s toxic water is not unlike the water quality issues discovered in 2016 in the Colorado towns of Fountain and Security-Widefield. That’s when water providers and residents learned that PFAS chemicals, short for per- and poly-fluoroalkyl substances, were detected at levels above EPA’s new 2016 health advisory levels. The source of the chemicals: firefighting foam used for decades to extinguish training fuel fires at the U.S. Air Force’s Peterson Air Force Base. The Air Force now uses a replacement foam at the base, and in 2019, the Colorado Legislature enacted restrictions and bans on PFAS foam, but the damage has been done. PFAS are known as “forever chemicals” because they bioaccumulate and remain in the environment for a long time, with half lives (the amount of time it takes the chemical to decrease to half its original value) in humans of two to eight years, depending on the chemical. They have been linked to cancers, liver and kidney damage, high cholesterol, low infant birth weight, and other ailments.
“We ended up having 16 family members that lived within that area that had cancer, and five of them died of kidney cancer,” said Mark Favors, during a public event on PFAS at Colorado School of Mines in January 2020. Favors is a former resident of Security, a U.S. Army veteran, a PFAS activist, and member of the Fountain Valley Clean Water Coalition. “A lot of [my family] are military veterans. One of my cousins, while he was doing two combat tours in Iraq, the Air Force was contaminating their drinking water. That’s the crazy part. How they’ve admitted it and it’s just hard to get any type of justice on the issue,” Favors says.
These southern El Paso County towns aren’t home to what are often considered disadvantaged populations—the poverty rate is between 8 and 9 percent, slightly less than the statewide average; about 60 percent of residents are white, and about 20 percent are Hispanic or Latinx, according to the 2017 U.S. Census. However, census numbers don’t represent military personnel who temporarily reside in the area. According to El Paso County’s Health Indicators report, published in 2012, four military bases in the county employ 40,500 military personnel and about 21,000 contract personnel.
When EPA tightened its health advisory levels in 2016, they were 10 times more restrictive than what the agency had previously advised, and water providers realized they had a problem. They acted quickly to provide residents with free bottled water and water filling stations while they suspended use of the aquifer, then worked to broker deals to purchase clean water from other municipalities. Some of those deals were only temporary. Since June 2018, the City of Fountain has worked to get back on its groundwater supply, treating the groundwater with granular activated carbon units provided by the Air Force. Now it is working with the U.S. Army Corps of Engineers to construct a full, permanent groundwater treatment plant. The story in Security is similar—the Security Water and Sanitation District has been importing water, primarily from Pueblo Reservoir, to meet the needs of its residents since 2016, which involved building new pipelines and purchasing extra water from Colorado Springs Utilities—an added cost. Security avoided raising water rates for a time, paying those costs out of its cash reserves. By 2018, residents had to absorb a 15 percent rate increase, with another 9.5 percent increase in 2019.
The Army Corps of Engineers is constructing a treatment facility in Security, too, which should be complete by the end of 2020. Once the plant is finished, Security will switch back to a combination of groundwater and surface water, and rates should stabilize once the costs of those pipelines are recovered, says Roy Heald, general manager at Security Water and Sanitation Districts.
Who pays to protect the health of those who rely on this water? “What responsibility did [the Air Force] have in rectifying this? What about the local sanitation districts? They have to deal with this. It’s not their fault but they’re tasked with giving clean water,” says MacIlroy at Colorado State University.
“The Air Force really has stepped up,” Heald says. But they may have to step up further—in 2019, the Security Water and Sanitation Districts and the Pikes Peak Community Foundation, another affected entity, sued the Air Force to recoup the costs of purchasing and piping in clean water. Their lawsuit cites negligence for disposal of chemicals, remediation of contamination, and breaching a responsibility to prevent dangerous conditions on the defendant’s property. Heald wouldn’t comment on the pending lawsuit, but says, “As long as [cash] reserves are at an adequate level, if we received a windfall there would be no place else for it to go besides back to our customers.” Those recouped costs would likely take the form of lower or stabilized rates.
Residents are also pushing for justice through a class-action lawsuit brought by the Colorado Springs-based McDivitt Lawfirm, which has teamed up with a personal injury law firm in New York to file against 3M, Tyco Fire Products, and other manufacturers of the firefighting foam.
“There’s going to have to be some sort of accountability and justice for these people who unknowingly, for years, drank colorless, odorless high amounts of PFAS,” says Favors. He calls for better oversight and demands that polluters are held accountable.
As for coping with PFAS-related health challenges, there are still a lot of unknowns, but El Paso County was selected to participate in two national Centers for Disease Control and Prevention studies to better assess the dangers of human exposure to PFAS, and to evaluate exposure pathways.
Locally, the study and lawsuits might help recoup some financial damages—but PFAS-related water contamination isn’t isolated to these Colorado communities. In July 2019, the Environmental Working Group mapped at least 712 documented cases of PFAS contamination across 49 states. Lawmakers in the U.S. House of Representatives, hoping to implement a national PFAS drinking water standard, estimate the number is even higher: 1,400 communities suffer from PFAS contamination. A U.S. Senate version of a PFAS-regulating bill has yet to be introduced. But in February, EPA released a draft proposal to consider regulating PFOS and PFOA, just two of the thousands of PFAS.
Justice through Water Rights
Environmental justice isn’t exclusively an urban issue. Injustices involving pollution, public health, access, affordability and water can be wrought anyplace—including rural and suburban areas. For rural communities, the issue comes to a head when people, organizations or entities in power seek more water for their needs at the cost of others.
In southern Colorado’s San Luis Valley, acequia communities fought for years to protect their water rights and way of life. Acequias are an equity-based irrigation system introduced by the original Spanish and Mexican settlers of southern Colorado. “What it means is that the entire community is only benefitted when all resources are shared,” says Judy Lopez, conservation project manager with Colorado Open Lands. There, Lopez works with landowners to preserve wildlife habitat, forests, culturally significant lands, and ag lands—including those served by acequias.
The Town of San Luis, the heart of Colorado’s acequia community, is one of the most economically disadvantaged in the state. It’s in Costilla County, where more than 60 percent of the population is Hispanic or Latinx—more than any other county in Colorado—and 25 percent of the population live in poverty, according to the 2017 U.S. Census. But the people there are long-time landowners, never separated from the land their ancestors settled, four to seven generations back, Lopez says. They have the state’s original water rights to match, including Colorado’s oldest continuously operated water right, the San Luis People’s Ditch, an acequia established in 1852.
Prior to statehood, the territorial government recognized acequia water rights. But when the Colorado Constitution established the right of prior appropriation, the priority scheme of “first in time, first in right” became the law, challenging communal rights.
“It was very difficult for [acequias] to go to water court and say, ‘This guy is taking my water,’” Lopez says. “It was very difficult to quantify the use and who was using it.”
It wasn’t until 2009 that the Colorado Legislature passed the Acequia Recognition Law. The law was developed by Rep. Ed Vigil with the help of the Sangre de Cristo Acequia Association, an entity that represents more than 73 acequias and 300 families who depend on them. Amended in 2013, the law solidifies the rights of acequia users. According to the Colorado Acequia Handbook, it allows “acequias to continue to exercise their traditional roles in governing community access to water, and also strengthens their ability to protect their water.”
In order to be recognized under the Acequia Recognition Act, acequias needed bylaws. Over the past six years, Colorado Open Lands, the Sangre de Cristo Acequia Association, and the University of Colorado Boulder have partnered to help 42 acequias write bylaws, thereby protecting their water. “The bylaws were still based, in large part, on those oral traditions,” Lopez says, “and included protective language that said, ‘If a water right is sold, or a piece of land is sold, that acequia gets the first right to purchase those rights.’”
Even having water rights doesn’t guarantee water access: Over the past few decades, the federal government has settled longstanding water rights cases with sovereign tribes, in many cases backdating tribal water rights to the dates of their reservations’ establishment. Although the tribes now have the nation’s oldest established water rights, they haven’t always, and they still come up against structural and financial barriers that prevent them from developing water and getting the real benefit of those rights.
Of the more than 570 federally recognized tribes in the United States, as of 2019 only 36 tribal water rights settlements had been federally approved. The Ute Mountain Ute and Southern Ute tribes in Colorado are among that small number, but despite their long journey, the tribes still don’t have access to all the water they own.
Tribal water rights have their roots in the Winters Doctrine, a 1908 case which established tribal water rights based on the date the federal government created their reservations—thereby moving tribal water rights to “first in line” among users.
In the 1970s and ‘80s, the U.S. government filed and worked through claims on behalf of the Ute Mountain Ute and Southern Ute tribes to surface waters in southwestern Colorado. In the 1980s, Congress approved a settlement between the tribes, the federal government and other parties; in 2000, the Colorado Ute Indian Water Rights Settlement Act was amended, entitling tribes to water from the U.S. Bureau of Reclamation’s proposed Animas-La Plata Project (A-LP), as well as from the Dolores Project’s McPhee Reservoir. Construction on A-LP began in 2001, and the project’s key feature, Lake Nighthorse—named for Sen. Ben Nighthorse Campbell—began filling in 2009.
Prior to the Dolores Project, many people living in Towaoc, on the Ute Mountain Ute Reservation, did not have running water and instead trucked it in to fill water tanks at their homes, says Ernest House, Jr., senior policy director with the Keystone Policy Center and former director of the Colorado Commission of Indian Affairs. His late father, Ernest House, Sr., was pivotal in that fight for water. “I was fortunate, my father was able to see A-LP completed. I think he probably, in his own right, couldn’t believe that it would have been done and could be done,” he says. But even today, some Southern Ute and Ute Mountain Ute communities still lack access to water, and aging infrastructure from the 1980s needs updating and repairs.
“Our tribes as sovereign nations cannot maintain or move forward without access to water,” House says. “We have to remind people that we have tribal nations in Colorado, and that we have other tribes that continue to call Colorado home, that were removed from the state, either by treaty or forced removal,” he says, adding that acknowledging the difficult past must be a part of conversations about the future.
Those conversations include state, regional, and federal-level water planning. The Colorado tribes are engaged in Colorado’s basin roundtable process, with both tribes occupying seats on the Southwest Basin Roundtable, says Greg Johnson, who heads the Colorado Water Conservation Board’s Water Supply Planning Section (and serves on the Water Education Colorado Board of Trustees). Through the roundtables, local stakeholders conduct basin-wide water planning that is eventually integrated into the statewide Colorado Water Plan. However, until recently, tribal involvement in regional Colorado River negotiations between the seven U.S. basin states and federal government has been nonexistent. Change is brewing—a 2018 federal Tribal Water Study highlighted how tribal water resources could impact Colorado River operations, while a new Water and Tribes Initiative is working to build tribal capacity and participation in water negotiations throughout the basin.
“The Utes have been in what we call Colorado for the last 10,000 to 12,000 years,” House says. “It would be a shame if we were left out of the conversations [about water].”
The External Costs of Industry
Government is vital to addressing the legacy of environmental injustice, and preventing future problems, but finding solutions also demands reconsidering how business is done.
Consider Colorado’s relationship with the extraction industry, visible in the 19th-century mines that pock mountain towns, uranium-rich communities like Nulca, and the escalation of oil and gas drilling today. Colorado is an “epicenter” of extraction and environmental justice issues, says Stephanie Malin, associate professor at Colorado State University and a sociologist who studies energy development and extraction.
Lack of local control in the past has been especially frustrating, Malin says, since private corporations earn profits off the resources but then outsource the impacts. In the end, extractive industries have a track record of leaving communities and governments to bear the costs of cleanup.
Take Gold King Mine as one high-profile example. In August 2015, wastewater from an abandoned mine in San Juan County contaminated the Animas River between Silverton and Durango. Contractors hired by EPA accidentally caused 3 million gallons of mine waste, laden with heavy metals, to wash into the Animas. New Mexico, Utah, and the Navajo Nation all filed to sue EPA, with farmers reporting that they couldn’t water their crops and others saying they had to truck in alternative water supplies. But those responsible for the contamination were long-gone. Like tens of thousands of other mines in the region, the Gold King Mine was abandoned in the early 20th century.
The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)—more commonly called Superfund—which Congress passed in 1980, was originally set up as a “polluter tax” on oil, gas and chemical companies at risk of contaminating communities or the environment. But Congress never reauthorized the tax, which expired in 1995. By the early 21st century, the fund was bankrupt. Today, these cleanups are funded entirely by taxpayers.
“It’s part of a bigger pattern of privatizing profit and nationalizing, or socializing, risk,” Malin says. “Then, communities and the environment are left holding the ‘external’ costs.” Those external costs, she says, are nearly unquantifiable: “The intergenerational impacts in particular are so hard to gauge, in terms of what the communities are absorbing.”
While these problems can seem intractable, there are solutions, Malin says. For example, the bond amounts companies are required to pay up-front should better reflect the actual cost of cleanup, she says. Last year, Colorado lawmakers made strides to unburden taxpayers in just that way, with an update to Colorado’s old mining law.
The new Colorado law, HB19-1113, makes sure water quality impacts from mining are accounted for and long-term impacts are avoided. The law says that the industry can no longer self bond—a practice that allowed mine operators to demonstrate they had the financial resources to cover clean-up costs rather than providing the resources up front. Without self bonding, taxpayers won’t be left paying for remediation if the company goes bankrupt. It also requires mine operators to factor water quality protection costs into their bond—and requires most to develop a water quality treatment plan. This means that reclamation plans must include a reasonable end date for any needed water quality treatment, hopefully ensuring Colorado will avoid new perpetually polluting mines.
State lawmakers are currently looking at a more encompassing environmental justice bill, HB20-1143, introduced in January 2020. At press time the bill was still under consideration. If it moves forward as introduced, the bill would increase the maximum civil fine for air and water quality violations—from $10,000 per day to $47,357 per day, which would be adjusted annually according to the consumer price index—reallocating some of the financial burden back on polluters. It would also authorize the use of the money in the state’s water quality improvement fund, which is where those water quality violation fines go, to pay for projects addressing impacts to communities. The bill would also bolster the state’s environmental justice efforts, with a new environmental justice advisory board and environmental justice ombudsperson who would run the advisory board and advocate for environmental justice communities.
Speaking up for Tomorrow’s Climate
Environmental justice can’t be about a single issue, says Lizeth Chacón, executive director of the Colorado People’s Alliance, a racial-justice, member-led organization based in Denver and Pueblo. That means looking at water-focused environmental justice alongside related issues such as climate change, racial justice, inequities, poverty, housing, power dynamics, and more.
“When we are talking to our members, we are talking to them about the fact that they are working two jobs and still cannot put dinner on the table in the week, talking that they live in fear of being deported and being separated from their families, talking about the fact that they are sick, or have headaches, or have to spend money on water because they can’t drink the water coming out of their tap like other people can,” she says. “It can’t be seen as one issue … This work has to be holistic.”
Currently, the Colorado People’s Alliance is working on a climate campaign directed by its members in Commerce City. “They said, ‘This is something that’s impacting all of us, regardless of where we’re from, whether we’re undocumented or documented, what our economic status is,’” she says. The Alliance is focused on greenhouse gas emissions, which have immediate health impacts and long-term water effects.
Another approach in northeast Denver is proceeding thanks to an EPA environmental justice grant, in which organizers will convene youth, local leaders, and scientists to create a community science project that leads to a more fishable and swimmable Denver South Platte River. The river flows through Elyria-Swansea and Globeville, but it used to be a dumping ground, with a landfill beside its banks. Clean ups and improved recreational access, much of which has been spearheaded by the nonprofit Greenway Foundation since its founding in 1974, have created opportunities for kayakers downtown, but river access in northeast Denver, beyond the popular Confluence Park, is limited. In addition, E. Coli levels are often high, making swimming inadvisable. Access to a healthy waterway makes communities more vibrant and whole, supporting health, wellbeing, recreation, and cultural and spiritual practices, but also connection. This may be the only recreational water access available to some urbanites.
“Rivers are one of the major pathways to healing the environment and healing ourselves,” said Jorge Figueroa at an initial workshop for this project in December 2019, where they began to establish a youth advisory board. Figueroa runs El Laboratorio, an organization that brings people together from different disciplines and cultures to creatively solve environmental challenges. (He is also on the Water Education Colorado Board of Trustees.) He’s working on this project with Lincoln Hills Cares, a nonprofit that provides outdoor education, recreation and experiences to youth who may not otherwise have these opportunities; and Colorado State University, which is developing a new campus at the National Western Center, called Spur, in the neighborhood. The partners expect to have a plan ready by the end of 2020, and the project should begin in 2021.
Figueroa, who grew up and has family in Puerto Rico, also witnessed, up close, the wave of climate refugees who left his home state after Hurricane Maria devastated it in 2017.
“It’s critical for us to invest in climate-resilient infrastructure and in the reliability of our municipal potable water systems,” Figueroa says. “But from an equity perspective, we need to ensure that the more than a trillion dollars that will be invested in the nation’s public water systems provide the most benefit to the most people.” His suggestion to build climate resiliency in an equitable way: water conservation. “Water conservation can be a supreme water equity tool: It provides cheaper water for the community and more resiliency and reliability for the system. It’s not only an ideal climate change adaptation strategy but also is one of the top, by far, equity water strategies.” When you don’t consider equity in water decisions, you can make vulnerable communities more vulnerable, he says.
Whether working to improve environmental justice structurally and physically through conservation and resiliencies, or politically and financially through new regulations, bonding or taxation, there are many opportunities to do better. But there are also social justice elements to work on. Chacón recommends involving community members at the beginning of a process—not at the end. She says it’s important to listen—and to not dismiss people when they disagree.
Looking forward, it’s up to everyone in positions of power to actively create space for disadvantaged communities to lead, says Chacón. “To us, the people who are closest to the pain are the ones closest to the solution because they know what’s happening in their community best of anyone.”
Some of the principles of engaging communities in these situations are “almost universal,” says Colorado’s Michael Wenstrom, an environmental protection specialist in EPA’s Environmental Justice Program. Wenstrom worked in Flint over the course of a year following the water emergency, “assisting them to connect with processes, in understanding what their rights are, and helping them learn how to raise their voices effectively,” he says.
He says that where communities and families are already overburdened—with poverty, crime, racism—they often don’t have time, expertise or resources to recognize the problems, nevermind address them. “In addition, people in low-income communities may be less inclined to raise their voices for various reasons,” Wenstrom says. Reasons could include racism, job discrimination, or, for some, the fear of being identified as an illegal resident.
He says officials like him who come into communities as outsiders must be careful, persistent, and work to build trust. “As trust builds, we can then start pointing people toward tackling issues related to pollution or public health,” he says. But, Wenstrom cautions, if people don’t believe they can make a difference, they won’t raise their voices in the first place.
Laura Paskus is a reporter in Albuquerque N.M., where her show, “Our Land: New Mexico’s Environmental Past, Present and Future,” airs on New Mexico PBS. Caitlin Coleman is editor of Headwaters magazine.
Tune into the 24th episode of our podcast: We Are Rivers. Learn all about Colorado’s instream flow program, and the significance it has on surrounding rivers and communities.
Join us for Episode 24 of We Are Rivers, as we de-wonk Colorado’s instream flow program, a critical tool to protect and enhance river flows across the state of Colorado.
Rivers form the lifelines of Colorado’s economy and lifestyle. On both sides of the Continental Divide, rivers provide world class fishing, paddling and fantastic scenic canyons. Not only do rivers provide engaging recreation opportunities, they also provide most of Colorado’s clean, safe, reliable drinking water, support our thriving agricultural communities, and substantially contribute to Colorado’s culture, heritage, and economy.
Recognizing the importance of rivers and the fact that the state needed to correlate the demands humans place on rivers with the reasonable preservation of the natural environment, Colorado established its Instream Flow Program in 1973. This program allows the Colorado Water Conservation Board (CWCB) to hold instream flow water rights – a legal mechanism to keep water in a specific reach of a river – to preserve or improve the natural environment of a stream or lake. The CWCB is responsible for the appropriation, acquisition, protection and monitoring of instream flow water rights.
The CWCB is the only entity in the state that can hold an instream flow water right, however many different entities including cities, agriculture, recreation and the environment benefit from instream flow water rights. In this episode of We Are Rivers, we explore the benefits of the program and discuss the important partnerships and collaborations that occur between different water users.
Take for example the City of Steamboat Springs. The 2002 and 2012 droughts significantly reduced flows in the Yampa River, impacting all water users. In 2002, the river experienced some of its lowest flows on record. River sports shops closed their doors, there was a voluntary ban on angling, and farmers and ranchers had less water. The river and the community suffered. Flash forward to 2012, and the community faced similar drought conditions. But partners got creative, and used the instream flow program to bolster flows in the Yampa River, preventing history from repeating itself. This partnership included the CWCB, Colorado Water Trust, and Upper Yampa Water Conservancy District. Together, they temporarily leased water from Stagecoach Reservoir, improving flows in the Yampa through the City of Steamboat. The short-term leases from Stagecoach Reservoir were vital to the health of the Yampa River and its surrounding communities, and were used not only in 2012, but also 2013 and 2017. This is just one example of how a diverse set of partners came together and utilized the instream flow program for many benefits.
The instream flow program underwent an exciting expansion earlier this year that will provide more opportunities for communities to benefit from collaborative instream flow solutions. After a multi-year stakeholder effort, the Colorado Legislature passed a bill to expand Colorado’s existing instream flow loan program – HB20-1157. The law expands protection of rivers without threatening or hindering existing water rights. It authorizes a targeted expansion of the loan program that makes the program more useful to water right owners and benefits Colorado’s rivers and streams. Specifically, it adjusts the amount of time a user can exercise a renewable loan from 3 years out of 10, to 5 years out of 10 years and it allows water right owners to renew participation in the program for up to two additional 10-year periods, for a total of 30 years. This is a huge opportunity for rivers and communities: take, for example, the benefit this provides to the Yampa River. The partners working together to secure the 3 in 10 instream flow loan on the Yampa through the city of Steamboat Springs now have two additional years in this 10-year period where water can be leased under the expanded program. Future climate conditions make frequent droughts more likely, and the opportunity to curb impacts during those back-to-back drought years is another important and timely benefit of the expanded ISF program.
The complexity of Colorado Water Law is a lot to digest, and the instream flow program is no exception. We hope you join us for Episode 24 to break down the specifics of the instream flow program and what it means for rivers and communities. Take a listen today!
Click here to read the newsletter. Here’s an excerpt:
Governor Polis Signs Bill to Expand Voluntary Loans Process for Instream Flows
On March 20, Governor Jared Polis signed into law House Bill 1157 (HB20-1157), which provides additional tools to the Colorado Water Conservation Board (CWCB) for managing voluntary loans from water rights owners for the purposes of preserving and improving the natural environment… Read More
Last week, Governor Polis signed into law two bipartisan bills that will help us in our mission to restore water to Colorado’s rivers in need. We couldn’t be more excited about HB 20-1037—a bill that provides direction for instream flow augmentation plans—and HB 20-1157—a bill that expands a program for temporary loans of water to the environment. Each of these bills was two years in the making, and ended up better for it. Water users from across the state weighed in on how these changes could work in tandem to both complement historical water uses, particularly agricultural, and to improve environmental conditions.
So, how will these bills work to restore water to rivers in need? We refer to HB 20-1037, as the the instream flow augmentation bill. This bill will facilitate court-approved plans under which water users can add water back into hard working, heavily used rivers under the auspices of the Colorado Water Conservation Board (CWCB). Water added back to the river will be protected as “instream flow,” or water that is designated for environmental purposes, but other water users can continue to divert water from the river for consumptive uses like agriculture and municipal delivery just as they always have. It’s a brand new concept using augmentation plans for instream flow—and required this clarification of old law. With this change, we can now move forward on our long-time goal of connecting the Cache la Poudre river from Fort Collins to Greeley.
HB 20-1157 is what we call the instream flow loan bill. It will add tools to a loan program that the CWCB has managed for some time. Until this bill, a water user could only loan their water right to the CWCB to be used for instream flow use in 3 out of 10 years. This legislation increases that to 5 out of 10 years. Additionally, in the past, only one ten-year loan period was allowed, but now that loan period can be extended for two additional ten-year periods. In sum, a water user can now loan their water to the CWCB for up to fifteen out of thirty years. There are many more details under this program, but what the legislation boils down to is a big benefit to aquatic environments and flexibility for water users who want to engage in this program, often for compensation.
We are proud to have worked with project partners including Cache la Poudre Water Users, the cities of Thornton, Fort Collins and Greeley, Northern Colorado Water Conservation District, the CWCB and Colorado Parks and Wildlife as proponents of the instream flow augmentation bill. It was our first foray into original legislative work, and a big success. And, we are thankful to The Nature Conservancy and Conservation Colorado for spearheading the legislative effort for the instream flow loan bill. Now, we can’t wait to do what the Water Trust does best—use these tools for projects that will restore water to our rivers. First stop, the Cache la Poudre River with the instream flow augmentation bill. Onward!
Here’s the release from Western Resource Advocates (Jamie Trafficanda):
Western Resource Advocates, American Planning Association Colorado Chapter, and Conservation Colorado today welcomed the passage of a bill to help Colorado communities include water efficiency in their long-range comprehensive planning and identify conservation strategies for new developments and growth.
HB20-1095 [Local Governments Water Elements In Master Plans] authorizes and provides support for Colorado communities to voluntarily include a water element in their master plan, enabling cities and towns to pursue water efficiency and conservation strategies to meet their needs. Linking land use planning with water planning will better facilitate and enable communities to meet their goals of developing projects sustainably, resulting in connected state and local efforts for water planning and conservation, and ultimately continued implementation of the Colorado Water Plan. The legislation now heads to Governor Jared Polis to be signed into law.
“In recognition of the importance of water to agriculture, recreation, the economy, and our overall quality of life, APA Colorado has long championed stewardship of water, a scarce resource in the arid West. Stewardship includes utilizing the tool that comprehensive master plans provide to link community land use planning with water planning,” said Susan Wood, AICP, APA Colorado legislative affairs representative. “Passage of this bill is the culmination of a multi-year effort by the APA Colorado Chapter and its members and we are pleased that it provides planning assistance to local governments through the Colorado Department of Local Affairs and connects to policies provided in the Colorado Water Plan. Our mission is Making Great Communities Happen and planning for our water future is essential to fulfilling this goal.”
“As Colorado becomes hotter and drier due to climate change, this bill will support Colorado’s growing communities that are interested in using water more efficiently,” said John Berggren, Western Resource Advocates water policy analyst. “By including water in master plans, our communities can grow without stressing our water supplies, increasing their resiliency and reducing their vulnerability to drought and shortages. We applaud Colorado lawmakers for valuing water efficiency as our communities grow, and we look forward to continuing to work with communities across our state to support locally driven water efficiency efforts.”
“Due to population growth and climate change, Colorado faces an impending water supply gap where our communities will need more water than they currently have,” said Josh Kuhn, water advocate at Conservation Colorado. “The passage of this bill provides greater direction and resources for communities across our state ensuring planning is smart from the start.”
APA Colorado, WRA, and their partners have been working for several years to help Colorado communities integrate their water and land use planning processes to improve water conservation and build more water smart communities. They have offered workshops, conducted trainings, and created resources for planners, including a first-of-its-kind guidebook that details how communities can integrate water efficiency into their land use planning and development processes.
While Colorado’s population is expected to grow from its current 5.8 million to over 8 million by 2050, climate change is causing our state’s water resources to become increasingly scarce, putting greater stress on our rivers, cities, farms, ranches, and recreation opportunities. Rising temperatures in Colorado and prolonged drought are expected to further reduce annual flows in our state’s rivers, making additional local and state water conservation efforts essential.
Here’s the release from the Colorado Water Conservation Board:
On March 20, Governor Jared Polis signed into law House Bill 1157 (HB20-1157: Loaned Water For Instream Flows To Improve Environment), which provides additional tools to the Colorado Water Conservation Board (CWCB) for managing voluntary loans from water rights owners for the purposes of preserving and improving the natural environment.
Specifically, the bill expands the number of years within a 10-year period that a renewable loan may be exercised from 3 years to 5 years, but for no more than 3 consecutive years, and allows a loan to be renewed for up to 2 additional 10-year periods. It also expands the CWCB’s ability to use loaned water for instream flows to improve the environment.
“This is a really helpful tool for instream flows that fall short. It is always good to have more ways to work with partners to protect flows in Colorado’s streams,” said CWCB Stream and Lake Protection Section Chief Linda Bassi.
CWCB’s Instream Flow Loan Program is critical for boosting stream flows, especially in late summer when flows are low, temperatures are high, and fish are particularly stressed. The CWCB appreciates the stakeholder coordination that resulted in this bill advancing to the Governor’s desk.
A bill that cleared the Colorado legislature with bipartisan support March 4 seeks to resolve an eight-year debate over how ranchers and other water users can maintain their historical water use when dry conditions trigger cutbacks to protect streamflows.
HB20-1159 [State Engineer Confirm Existing Use Instream Flow], which passed the House with a unanimous 63-0 vote and the Senate with a 31-1 vote, authorizes state water officials to confirm historical usages, such as water used for livestock, whether or not it’s held in an official water right. This allows ranchers’ uses to stay first in line for water ahead of the stream protections, known as instream-flow rights.
“It’s really a belt-and-suspenders clarification of existing authority,” said Zane Kessler, director of government relations for the Colorado River Water Conservation District, which drafted the language for the bill. “I think it’s a good example of when we sit down and pore over these issues, it’s not hard to come up with a fix that protects West Slope water users and provides the state engineer the authority he needs to continue administering them.”
Instream-flow rights, which are held exclusively by the Colorado Water Conservation Board, exist for the sole purpose of preserving the natural environment of streams and lakes “to a reasonable degree.” Most of these date to the 1970s and are junior to most agricultural-water rights under Colorado’s prior appropriation system of “first in time, first in right.” To date, instream-flow rights protect roughly 9,700 miles of stream in Colorado.
The debate over historical uses has turned on whether a water user must go to water court to make their pre-existing use official in a decree.
A 2012 drought brought the question to a head when state officials cut off water users on the Elk River in northwestern Colorado in favor of instream-flow rights. Although many ranchers in the area have water rights for irrigation that are senior to the 1977 instream-flow rights and have historically used that water also for their cattle, the state Division of Water Resources determined that livestock watering wasn’t implicit in irrigation rights.
Those without specific rights for stockwatering were left high and dry once the summer irrigation season was deemed over, even though they had used the water for livestock for generations.
“My grandparents bought this piece of land in 1946,” said Krista Monger, a cattle rancher on the Elk River. “We have the records to show we’ve been using (our water) for livestock.”
Stockwatering and irrigation often go hand in hand. During the irrigation season, if a rancher’s livestock drink from the ditches used to irrigate their fields, the use is considered incidental to irrigation. But once the growing season is over and a rancher keeps the water flowing through the ditch for the exclusive purpose of watering their livestock, the use is not covered under irrigation-water rights.
The amount of water typically used for exclusive stockwatering is a fraction of what is used for irrigating, around 80% to 90% less. Some ranchers also use stock ponds, which require a water-storage right.
More than 90,000 irrigation-water rights are held across the state, of which 29,000 specifically name both irrigation and livestock uses. That means the new law could potentially apply to 61,000 water rights, although not all of these are held by ranchers raising livestock. An additional nearly 32,000 water rights are held exclusively for livestock purposes but not irrigation.
The Monger family holds both irrigation- and livestock-water rights to grow hay and to water their 300 cattle. Her family’s rights and diligent record-keeping meant their ditches kept flowing while their neighbors’ ditches were shut down in 2012, highlighting the need for better record-keeping among the region’s irrigators.
But the incident prompted a statewide debate over the meaning of Colorado statute C.R.S. 37-92-102(3)(b), which states that instream-flow rights are subject to pre-existing uses of water, “whether or not previously confirmed by court order or decree.”
The state Department of Natural Resources, home to both the Division of Water Resources and CWCB, argued that when the instream-flow protections were created, lawmakers intended for water users to make their existing use official in a decree. The Colorado Cattlemen’s Association and the Colorado River Water Conservation District argued that the statute clearly precludes the need for a court decree and sought to protect ranchers’ historical usage without requiring them to go to water court.
“The statute says… prior uses would be honored. But they’re saying the statute doesn’t say what the statute says,” said Mike Hogue, former president of the cattlemen’s group.
After years of negotiations, stakeholders agreed on a simple piece of legislation to clarify the state water engineer’s authority “to confirm a claim of an existing use (if it) has not been previously confirmed by court order or decree,” according to the bill summary. The bill had bipartisan sponsorship from Reps. Marc Catlin, R-Montrose, and Dylan Roberts, D-Avon, and Sens. Don Coram, R-Montrose, and Kerry Donovan, D-Vail.
“I do think this is very helpful legislation,” said State Engineer Kevin Rein, who is with the Division of Water Resources. “We had what I’d call an honest disagreement about what the statute meant. My position is if they change the law and give me a place to hang my hat on, that solves the problem.”
However, what the legislation doesn’t resolve — and what is perhaps a bigger Pandora’s box opened by the 2012 incident — is the decision that state water officials made that irrigation rights do not include stockwatering rights. In practice, irrigators around the state, many of whom hold water rights dating to the late 1800s and early 1900s, have used irrigation- or agricultural-water rights not to just irrigate their hayfields, but also to water their livestock.
The new distinction means that ranchers with irrigation rights must apply for livestock water rights if they want to protect their usage into the future. Although the new legislation protects a rancher’s stockwatering use from being shut off specifically by an instream-flow right , their stockwater use could still be cut off if another water user makes a call on the river to fulfill a formal water right.
“We all thought that was part of our ag water rights,” said Doug Monger, a Routt County commissioner and a cattle rancher on the Yampa River in northwest Colorado, and also uncle to Krista Monger. “It’s a wakeup call for all of us.”
Aspen Journalism collaborates with The Craig Daily Press, Steamboat Pilot and Today and other Swift Communications newspapers on coverage of water and rivers. This story ran in the March 16 edition of the Craig Press.
FromThe Fort Collins Coloradoan (Miles Blumhardt):
Now that a pack of wolves has been confirmed in Colorado for the first time in decades, could the state also have its first breeding pair?
Answering that question could have ramifications for a ballot initiative and legislative bill that calls for reintroducing wolves, predators that have been absent from the state since the 1940s (aside from sporadic reports of wandering lone individuals).
Both measures require the state to establish a sustainable wolf population. However, wording in the bill allows the state to cancel reintroduction efforts if the gray wolf already has a self-sustaining population.
“There is some trickiness and uncertainty for the ballot initiative and legislation (if the pack does produce young in Colorado), but you need a couple of packs successfully producing a couple of years to call it a population,” said Eric Odell, Colorado Parks and Wildlife species conservation program manager.
Now that a pack has been reported in the state for the first time in 80 years, the start of that self-sustaining population may already be happening.
Currently, neither Colorado Parks and Wildlife nor the U.S. Fish and Wildlife Service is actively monitoring the pack, which was discovered in the northwest corner of the state earlier this month…
If the pack was captured and tracking collars applied, it would identify if there is a breeding pair of adults, allow biologists to locate a possible den site and help determine if the pair produces young in the state this spring…
Carbondale rancher Bill Fales said he would like to see the pack more closely monitored.
“I think we need to know if they are breeding and what they are eating, and the sooner we know that information, the better,” said Fales, while checking calves at his ranch Friday.
Rob Edward, president of the Rocky Mountain Wolf Action Fund, which is spearheading the ballot initiative, said more closely monitoring the pack may not be needed until later.
“It is conceivable in the future that there will be a closer eye paid to them because it will play into discussions of what we do going forward with reintroduction or augmentation of the wolf population,” he said…
What biologists do know about the pack
Odell said district wildlife mangers used spotting scopes to locate six wolves from more than a mile away on March 4. The pack was spotted several miles south of where the animals were initially seen in January in Moffat County.
He said no tracking collars were seen on any of the wolves verified by CPW employees. He said genetic evidence collected from the pack’s scat samples near an elk kill indicated three females and one male and that the animals are siblings. Their age is unknown.
He said it is unknown if the other wolves in the pack are parents of the siblings. If that is the case, it would indicate a breeding pair but would still leave unanswered whether the parents produced the siblings in Colorado.
Wolves generally breed in January and February and give birth in April and May. Wolf packs are usually made up of parents and their pups from the previous several years.
“You can connect the dots and make an educated guess based on the genetics that there has been reproduction in the past, maybe even last spring,” he said. “But that could have taken place in Colorado, Utah, Wyoming, who knows.”’
Edward said it is likely if there are adults in the pack and they do produce young in the state this spring, given the current monitoring of game cameras and the local’s interest in the wolves, they will be seen.
A bill aimed at expanding Colorado’s instream-flow loan program is moving through the state legislature and has support from agricultural water users, Front Range water providers and environmental organizations, in contrast to last year when the bill ran into opposition.
House Bill 1157 [Loaned Water For Instream Flows To Improve Environment], which last week passed the House in a unanimous 60-0 vote, would allow water-rights holders to temporarily loan their water to the Colorado Water Conservation Board’s instream-flow program with the goal of improving the natural environment.
The bill expands the number of years from three to five (but for no more than three consecutive years) that a loan may be exercised within a 10-year period. The loan also may be renewed for two additional 10-year periods, meaning that holders of agricultural water rights could theoretically loan their water for the benefit of the environment for 15 of 30 years.
Environmental groups, including The Nature Conservancy, Colorado Sierra Club and Conservation Colorado, support the legislation, and so do water-user organizations, including the Colorado Water Congress, Denver Water, Northern Water, and the Grand Valley Water Users Association.
HB 1157 is sponsored by Sen. Kerry Donovan (D-Vail) and District 26 Rep. Dylan Roberts (D-Avon), both of whom floated a similar bill last year. This year’s iteration gained the sponsorship of District 57 Rep. Perry Will (R-New Castle).
After the bill faltered in last year’s legislative session, Roberts knew he had some work to do before he brought it back to lawmakers, so he spent the summer and fall talking with the many interested parties about how to improve it.
“I represent Eagle and Routt counties, which are home to four major river systems, and I know how vital it is to the Roaring Fork Valley, the Eagle River Valley and the Yampa River Valley to have a really strong flowing river,” he said.
The Eagle, Colorado and Roaring Fork rivers flow through Eagle County, and the Yampa River flows through Routt County.
“Instream-flow loans allow people to loan the water back and help the river, while not losing their water rights,” Roberts said.
n the new bill, lawmakers added more protections for water-rights holders by increasing the window for people to appeal a loan. The legislation quadruples the comment period from 15 to 60 days so that those who feel they could be harmed by a loan of water have sufficient time to raise their concerns with the state engineer
Instream flow program
Colorado’s instream-flow program gives the CWCB the ability to hold water rights specifically for preserving the natural environment “to a reasonable degree” by keeping water flowing in the river. Since 1973, the CWCB has appropriated instream-flow rights on nearly 1,700 stream segments, covering more than 9,700 stream miles.
Instream water rights are administered under Colorado’s prior appropriation system. And, given that none of the instream rights were in place before 1973, most of them are junior to senior agricultural water rights. Those rights, which can date to the 1860s in Colorado, have a higher priority under the “first in time, first in right” doctrine.
Senior ag rights divert significant amounts of water from the state’s rivers and streams and can even dry up some reaches in drought years. However, the state’s instream-flow program does allow owners of such senior water rights not to use their rights for irrigation and instead leave their irrigation water in the river, on a temporary basis, to bolster low flows. And the new legislation expands that option.
The temporary loan program — where water-rights owners offer, in exchange for payment, to contribute their water to one of these segments with an existing instream-flow right — has only been used seven times since its creation in 2003. In Division 5, temporary water loans have occurred on Deep Creek, the Fraser River and the Colorado River.
CWCB officials estimate an additional two to four loans under the program over the next few years.
In past deals, irrigators have been paid for the loan of their water by the state, Trout Unlimited or the Colorado Water Trust.
According to CWCB Stream and Lake Protection section chief Linda Bassi, the loan program can help boost streams in late summer when flows are low, temperatures are high and fish are stressed.
“It’s a really helpful tool for instream flows that fall short,” she said. “It’s always good to have more tools to help preserve the environment.”
River District support
The bill has garnered the support of the Glenwood Springs-based Colorado River Water Conservation District, which helped shape the revamped 2020 bill with its input. The River District board voted unanimously to support the measure, according to Zane Kessler, director of government relations.
“Rep. Roberts went above and beyond to make sure the bill addressed the River District’s needs and provides meaningful protections to our constituents on the West Slope and agricultural water users across the state,” Kessler said.
Also, the legislation requires the CWCB to give preference to loans of water stored in reservoirs, when available, over agricultural and other water rights diverted directly from rivers and streams. This provision was included at the request of the River District.
Kirsten Kurath, attorney for the Grand Valley Water Users Association, said lawmakers worked with the association over the past year to improve the bill from 2019.
“I think, in general, that the bill is much more protective now of other water-rights users on the stream,” Kurath said.
The bill is now under consideration by the state Senate.
Aspen Journalism collaborates with The Aspen Times and other Swift Communications newspapers on coverage of water and rivers. This story ran in the Feb. 29 issue of The Aspen Times.
Colorado House Bill 1095 says if a local government’s comprehensive plan includes a water-supply element, it must also include conservation policies. While there might be disagreement on how to conserve, some planners are already incorporating water into their land-use decisions…
In the Southwest basin, water demand is projected to increase between 17,000 and 27,000 acre feet by 2050, according to the Basin Implementation Plan. That’s with some conservation by users…
According to scientific models, the Southwest is also more vulnerable to drought as the climate warms, said Gigi Richard, director of the Four Corners Water Center at Fort Lewis College.
“One, we know our population is growing. Two, we know our climate is warming,” Richard said. “Those two things are going to put stresses on the quantity of water available.”
Durango and Bayfield have already included some water conservation measures into their community planning. Ignacio lacks any specific water conservation measures.
The town does not have a comprehensive plan, an advisory document that outlines long-term goals for community development required by state statute…
In Durango, the comprehensive plan references a 2015 sustainable action plan and a 2011 water efficiency management plan. The last time the city implemented water restrictions was in 2002, the year of the Missionary Ridge Fire.
“If that bill passed, I feel confident that we’ve integrated enough … that we would meet those requirements,” Biggs said. “We could always do more and do better.” In Bayfield, the town’s 2005 comprehensive plan does not include some of the town’s updated policies. For example, the 2018 Water Master Plan includes water supply requirements, and those would be incorporated when the comprehensive plan is updated. The town started looking at its emergency water measures during the drought in 2018.
“Every time we have a project in Bayfield, ‘Hey, is there adequate water?’” said Bayfield Mayor Matt Salka. “The answer is yes, but for the town of Bayfield, we always have water in mind.”
Water conservation and efficiency can be a charged topic among users.
Durango water users’ opinions on conservation methods are a “mixed bag,” Biggs said. Some people are actively trying to conserve, while others value a healthy lawn.
In Bayfield, most people seem to support the idea of water conservation, Salka said. “I don’t think it’s a big topic here from a development perspective,” Garcia said of Ignacio. “Some folks are looking at water conservation for reducing their own use and bill.”
Since 2010, the state has fined Suncor, the oil refinery in Commerce City, $3.7 million for violating the state’s air quality laws more than 100 times, according to the state Air Pollution Control Division. Despite the hefty penalties, on Dec. 11, an equipment malfunction spewed yellow ash that settled over parts of the city. Two days later, the state sent the company a 56-page letter listing potential air quality violations from an earlier inspection, including failing to burn off cancer-causing benzene emissions and repeatedly exceeding emissions caps for the toxic gases hydrogen sulfide and sulfur dioxide.
In the minds of some Democratic lawmakers, the current fines are not doing enough.
“A state like ours should have some of the highest air and water quality violation fines in the country,” said Rep. Serena Gonzales-Gutierrez, a Democrat from north Denver, during a news conference this month. “Anyone who disrespects our air and water should have to pay the price.”
Gonzales-Gutierrez is sponsoring a bill that would raise the maximum penalties that air polluters like Suncor could pay three-fold from the current $15,000 per violation to the federal maximum of $47,357. It also would increase the water quality violations cap of $10,000 to the same federal maximum. The hope, lawmakers say, is that steeper fines will deter companies from violating environmental laws.
The bill is not the only effort to make polluters pay more. Another bill, sponsored by Senate Majority Leader Steve Fenberg, a Democrat from Boulder, would eliminate the legal limit on fees air quality regulators can charge for oil and gas and other industrial air pollution permits, potentially generating $3 million for air monitoring and health studies next fiscal year. Fenberg’s bill is yet to be introduced. The Polis administration also wants to eliminate a cap that limits fees the state can charge a company for each ton of pollution it emits. This would only affect large polluters, such as Tri-State and Xcel, both of which are electric utilities that own and operate coal-fired power plants. Eliminating the cap would raise about $116,000, according to the Colorado Department of Public Health and Environment.
But as lawmakers seek to hold polluters accountable through larger fees and fines they are running into a roadblock with the state’s complicated fiscal policy. That’s forcing them to work around constitutional limits on the size of the state budget.
Under the Taxpayer Bill of Rights, or TABOR, which voters passed in 1992, any revenue that the state collects from fines and fees counts toward the so-called TABOR cap, which places a limit on how much revenue the state can keep before sending some of it back to taxpayers in the form of TABOR refunds. Because revenue will exceed the cap this year, every additional dollar the state collects from fees and fines, an equal amount needs to be scraped off the top of the $30-plus-billion state budget in the form of cuts to programs or reductions in discretionary spending in order to pay for those refunds.
The move to increase maximum fines comes as the Front Range grapples with ground-level ozone pollution, predominantly stemming from emissions from people driving automobiles and drilling for oil and gas. Meanwhile, the north Denver neighborhoods of Elyria-Swansea and Globeville have the most polluted zip code in the nation, 80216, sandwiched between traffic and construction on I-70 to the south and the Suncor oil refinery and the Xcel’s Cherokee Generating Station gas-fired power plant to the north. The city of Fountain is also working to clean up toxic PFAS chemicals in its water. These neighborhoods are among the more affordable and ethnically diverse in the Front Range, drawing concerns about environmental injustices.
For Gonzales-Gutierrez’s bill, in both a strategic and semantic maneuver, sponsors have proposed dubbing the fines collected as “damages.” Doing so has the effect of avoiding additional TABOR refunds.
For Fenberg’s bill, backers want to set up an enterprise fund to hold the extra money that comes in through fees on air pollution permits. This is different than calling the fees damages but would have a similar effect of avoiding TABOR refund requirements. Enterprise funds are like bank accounts not subject to TABOR.
Even so, TABOR places some restrictions on this kind of budgeting, limiting the amount of other state money, such as general fund revenue from sales and income taxes, that can be used to pay for programs that rely on money in an enterprise fund.
Scott Wasserman, president of the Bell Policy Center in Denver, a left-leaning think-tank, said TABOR makes it harder for lawmakers to use economic incentives or disincentives to address climate change or environmental pollution.
“Any additional revenue that comes in displaces other programs,” Wasserman said. “This is one more example that we can’t act like other states.”
The dilemma this year comes after voters rejected Proposition CC last November. The ballot measure, which failed by 10 points, would have allowed lawmakers to keep the money that exceeded the TABOR revenue cap.
As a result, conservatives suspected Democrats, who control the state legislature and the governor’s office, would try to skirt around TABOR by putting revenue into enterprise funds, said Michael Fields, the executive director for Colorado Rising Action, a conservative political advocacy group. Fields, whose nonprofit doesn’t disclose its donors, donated more than $12,000 to fight Proposition CC.
And on Friday, he filed a ballot measure with the Secretary of State that would require lawmakers to get voter approval for the creation of fee-based enterprises. TABOR already requires that voters approve a tax increase, and since 1992, only three out of 15 proposed tax increases have been approved.
“A lot of people are going to have complaints about those fees,” said Fields, referencing the air pollution permit fees as well as an effort to raise the gas tax by calling it a fee.
The ballot measure wouldn’t affect the bills under consideration this year. And it would change the law, not the Colorado constitution, which means lawmakers could repeal it if they wanted to. But, if the measure passed, it would make it harder politically for lawmakers to rely on enterprises in the future. “I think more than anything we would hope the legislature would listen to the will of the people,” Fields said.
Despite the legislative push to increase maximum fines, the Colorado Department of Public Health and Environment, which enforces the state and federal air quality laws, rarely imposes the existing maximum fines, according to state records. The official view is that high fines can invite costly legal fights, said John Putnam, the agency’s environmental programs manager.
Even so, Putnam said, the department sees the proposed legislation as a signal that the agency should fine companies a bit more. According to a fiscal note from nonpartisan Legislative Council, the state is expected to collect an additional $2.8 million in the fiscal year 2022-23 by raising the fine limits.
The pollution fines bill, sponsored by Gonzales-Gutierrez, would set up a seven-member board to decide how to spend that money. Four of the members would be appointed by the minority and majority parties in the legislature and three members would be appointed by CDPHE’s executive director, one of whom must be a resident from a neighborhood affected by pollution. The goal of this board is to give local communities affected by pollution a voice in how it’s spent.
“Because of my lived experience, I know how it feels to feel as though you’re not being heard and to not feel as though you’re empowered,” said Rep. Dominique Jackson of Aurora, a lead bill sponsor on the bill.
Sen. Faith Winter of Westminster, also backing the pollution fines bill, said the money could be spent on cleaning up pollution, staffing a health clinic or creating more open space for recreation.
“A lot of these communities that have more pollution also tend to have less parks, openspace and bike paths,” Winter said. “And that’s another form of environmental injustice.”
House Bill 1143 — which will be discussed in the House Finance Committee on Feb. 27 — would create a seven-member environmental justice advisory board to identify mitigation projects in affected areas. The bill also aims to add a new position in CDPHE focused on environmental justice to lead the advisory board.
“A lot of these communities have never experienced justice,” said Rep. Dominique Jackson, an Aurora Democrat who is helping push the bill. “The health implications are substantial when it comes to air and water quality violations. These communities know what they need better than any person in the legislature.”
The current maximum fine for air quality violations is $15,000 per day, per violation; for water quality violations, it’s $10,000. The bill would increase both fines to $42,357, which is in line with the federal maximum.
Current law allocates all water quality fines to the Water Quality Improvement Fund. The new bill would authorize the use of money in that fund to pay for projects addressing impacts to environmental justice communities. Currently, all air quality fines go into the general fund. The bill would create the community impact cash fund to go toward environmental mitigation projects.
“I worked really hard, with a coalition of community members, to come up with the definition of an environmental justice community,” Jackson said. “… I just really wanted to make sure that people who didn’t feel as though they have had a voice in the conversation, who’ve been experiencing impacts in their community, generally speaking for quite some time, were able to come to the table.”
The bill defines an environmental justice community as one where residents “are predominantly minorities or have low incomes; have been excluded from environmental policy-setting or decision-making processes; are subject to a disproportionate impact from one or more environmental hazards; or experience disparate implementation of environmental regulations, requirements, practices and activities.”
“Fines are powerful enforcement tools, but they aren’t the only options available to us,” said Jessica Bralish, a state health department spokeswoman.
“Our priority is to bring facilities into compliance, resolve violations and take steps to ensure long-term compliance,” she said. “We assess the maximum daily fine in response to particularly egregious, dangerous or repeated violations. Our goal is always to enforce state laws in pursuit of our broader mandate — protecting and preserving the public health and environment in Colorado.”
One hurdle for the bill: the Taxpayer’s Bill of Rights, which limits the amount of revenue the state can collect and spend. The bill sponsors are exploring if it’s possible to classify the fines as “damages” so that the funds won’t fall under TABOR. Other prime sponsors of the bill include Rep. Serena Gonzales-Gutierrez, a Denver Democrat, and Sen. Faith Winter, a Westminster Democrat.
John Putnam, the director of environmental programs at CDPHE, said the increase in fines will bring Colorado up to federal standards.
Four weeks into the work year, Colorado lawmakers have pushed forward water bills that would study ways to strengthen anti-speculation laws, offer a new avenue to set aside more water for streams, and authorize cities to consider state conservation goals and future water supplies before approving new development.
Senate Bill 48 passed the Senate unanimously on Jan. 29. It requires the Colorado Department of Natural Resources to form a working group to explore ways to strengthen anti-speculation laws. The agency must report its recommendations to the interim Water Resources Review Committee by Aug. 15, 2021. Although Colorado’s constitution and case law prohibit water speculation—hoarding water without putting it to beneficial use—the bill’s sponsor, Sen. Kerry Donovan, D-Vail, said she’s aware of out-of-state entities purchasing agricultural water rights without having “the best interests of our communities and agricultural future in mind.” She’s also concerned that if Colorado is faced with cutbacks in Colorado River use, due to ongoing drought and climate change, it will make Colorado’s water that much more appealing to speculators looking to profit.
“I want to make sure we are fully prepared for what I think will be a new water future, and this bill will allow us to stay ahead of that and be proactive instead of reactive.” The bill is scheduled to be heard by the House Rural Affairs and Agriculture Committee on Feb. 27.
New water source for instream flows?
House Bill 1037, which passed the House unanimously Jan. 29, authorizes the Colorado Water Conservation Board (CWCB) to use an acquired water right, whose historic consumptive use has been previously quantified and changed to include augmentation use, to boost river flows for environmental benefits. Farmers have long used so-called augmentation water to help offset their water use, particularly of groundwater, when that use is not in priority within Colorado’s water rights system. Now, augmentation water could also be used to boost instream flows.
Rep. Jeni Arndt, D-Fort Collins, the bill’s sponsor, noted that an augmentation plan can “make water rights available to boost instream flows without injury” to existing water rights. HB 1037 goes next to the Senate Agriculture and Natural Resources Committee on Feb. 20.
Still another measure addressing instream flows, House Bill 20-1157, would significantly expand the state’s existing instream flow lease program. Sponsored by Rep. Dylan Roberts, D-Avon, it is scheduled to be heard Feb. 13 in the House Rural Affairs and Agriculture Committee.
Coordination of land use and water planning
House Bill 1095 was approved by the House Rural Affairs and Agriculture Committee on Feb. 3 and was scheduled to be heard on the House floor Feb. 12. It authorizes counties and municipalities that have adopted master plans that contain a water supply element to include state water plan goals and conservation policies that may affect land development approvals. Rep. Arndt, also this bill’s sponsor, noted that the 2015 Colorado Water Plan projects a municipal and industrial water supply gap of 560,000 acre-feet by 2050, and has an objective for municipal and industrial water conservation of 400,000 acre-feet by the same year.
Testimony in support of the bill argued that it would help ensure enough water to meet future demand by ensuring new development doesn’t outpace water supplies. Opponents expressed concern that master plans were not the most effective means to achieve the bill’s objectives, and that local governments already have the requisite authority. The bill passed on a 7-4 vote and goes next to the full House for debate.
Enough public input for now on demand management
Senate Bill 24 was defeated in the Senate Agriculture and Natural Resources Committee on Jan. 30 at the sponsor’s request. The bill would have required that the CWCB gather additional public input on efforts to create a multi-state water conservation program, known as “demand management,” in which up to 500,000 acre-feet of water could be set aside in Lake Powell to protect minimum power pools and to provide additional protection for Colorado and other upper basin states should the river system hit crisis levels. It also would have required CWCB to submit any draft program to the interim Water Resources Review Committee, which would then hold public hearings in basins across the state, and to consider the committee’s feedback following the conclusion of those hearings.
The bill’s sponsor, Sen. Don Coram, R-Montrose, requested that the committee defeat it because he believes, for now, it isn’t necessary. “The bill has created the reaction we wanted…..we’ll be watching to see how the outreach plays out,” he said.
Larry Morandi was formerly director of State Policy Research with the National Conference of State Legislatures in Denver, and is a frequent contributor to Fresh Water News. He can be reached at firstname.lastname@example.org.
SB20-008, sponsored by Sen. Faith Winter, D-Westminster, would increase penalties for polluting state waters from $12,500 currently to $25,000 per day for “criminal negligence” violations, as well as a year in jail, and from $25,000 currently to $50,000 per day for “knowing and intentional” violations, as well as up to three years behind bars.
Knowing or intentional pollution would be prosecuted as a class 5 felony.
While testifying to the Senate Agricultural & Natural Resources Committee on Feb. 6, Winter said the bill aligns Colorado’s own pollution laws under the Water Quality Control Act with the federal Clean Water Act governing the same crimes.
“Federal action has been going down in recent years to protect our waterways,” Winter testified, saying that recent reports showed the number of new cases prosecuted by the federal Environmental Protection Agency are at a 20-year low, and that the agency was too short-staffed to adequately police pollution.
No water pollution crimes have been prosecuted under Colorado law, while only two have been prosecuted under federal law in the past 10 years, Jason King testified on behalf of the Colorado Department of Law, which supports the bill.
To ensure that they don’t develop beyond the limits of their water supply, Riley says [Woodland Park] has closely integrated its land-use decisions with local water conservation and efficiency goals that align with the Colorado Water Plan.
A new bill at the Colorado Capitol hopes to encourage more local governments to do the same. House Bill 1095 says that if a community identifies it will need more water to grow, it should also include conservation measures for its existing supply.
“In a state that hates mandates, this is a gentle nudge for communities to make sure they are planning for the future when it comes to water,” said state Rep. Jeni Arndt, a Fort Collins Democrat who is bringing the bill.
The Colorado Water Plan five years ago set the goal that by 2025, 75% of Coloradans will live in communities that have incorporated water-saving actions into land-use planning.
Currently, 24 communities have completed the Sonoran Institute’s Growing Water Smart Training, a leading program that helps communities integrate land use planning and water conservation efforts, said Sara Leonard, a spokeswoman for the Colorado Water Conservation Board.
Leonard estimates that 15 to 20 more communities have participated in similar workshops, but many more would need to take part in order to meet the state’s goal…
HB20-1095 would also make permanent a temporary, partially grant-funded position in the Department of Local Affairs that assists local governments in integrating water conservation in their land use planning — though there is currently no money allocated in the bill to support the position.
“Historically, water resource planning and land-use planning have been implemented on parallel tracks. By separating these planning areas into different silos, the impacts from each on the other are not fully addressed,” Leonard said.
“With a growing population in Colorado, it is imperative to synchronize land and water planning to help planners to better understand the impact of new growth and redevelopment on future water demand in our urban areas.”
Today, Woodland Park has added dozens of regulations and ordinances into its zoning and building codes that focus on water conservation. It also limits the number of houses that can be built each year by setting a cap for how many new taps can be installed.
What the bill would do –– and what it wouldn’t
One of a dozen water bills introduced this session, ranging from water well inspections to fee exemptions, House Bill 1095 requires that if a local government’s comprehensive plan includes a water supply element, it must also include conservation policies.
A comprehensive plan is an advisory document that outlines long-term goals for community development, and often includes guidelines for things like transportation, utilities, land use, environmental protection, recreation and housing.
But comprehensive plans are not regulatory documents.
These conservation policies may include “goals specified in the state water plan, and may also include policies to implement water conservation and other state water plan goals as a condition of development approval, including subdivisions, planned unit developments, special use permits, and zoning changes,” the bill says.
Though state statute requires every municipality or county in Colorado to have a comprehensive plan, it doesn’t require them to include water element. But if it does, water conservation measures must be added the first time the plan is amended after the bill takes effect, but no later than July 1, 2025.
Gretel Follingstad, a Colorado-based land use planner and consultant who specializes in water resource management, said the language in the bill makes the recommendations “optional” and minimizes the bill’s potential impact.
“If you really want a strong policy around water, and you really want the state water plan goals to come to fruition, you need a will, not a may,” she said. “Because otherwise communities won’t do it if they don’t have the funding for it or they don’t have the political will, or if they don’t feel like they have a problem.”
But just by adding water into the local comprehensive plans, it’s changing the conversation, she said.
“We can’t change the fact that Colorado uses water districts as water suppliers and that those water districts are separate entities from their community,” Follingstad said. “All we can do is to teach the community planners that water is not infinite.”
In July, the Colorado Water Conservation Board released a technical analysis and update to the state’s supply and demand projections. The update examined water supply under five scenarios, with the two biggest drivers for water supply gaps being population growth and a warming climate.
The scenarios project that municipal and industrial water users may see water supply gaps ranging from 250,000 to 750,000 acre-feet by 2050. Approximately one acre-foot can support the needs of two families of four to five people a year, according to the Colorado Water Center at Colorado State University.
“It’s unlikely that conservation efforts can completely close the gap,” Arndt said. “But it can certainly help.”
Colorado Counties Inc., which lobbies on behalf of the state’ county governments, testified at the bill’s Feb. 3 hearing before the the House Rural Affairs and Agriculture Committee that its members worry the measure could open the door to formal regulations…
Gervais also added that counties and local governments already have the authority to include water planning in their land-use planning process. A 1991 law requires water utilities with a demand of greater than 2,000 acre-feet annually to have a water conservation plan.
“I’m glad we have that, but that’s not a substitute for a five- or 10-year visionary master plan,” Arndt said.
For Follingstad, comprehensive plans are crucial tools for communities envisioning the future. And that they can provide a policy framework for zoning and development regulations…
Avoiding the worst case scenario
Even though the bill doesn’t give local governments more authority, advocates hope it helps bring water conservation into the land-use conversation at the beginning of the community planning process, not the end.
“So, basically, utilities have been expected to come up with a supply to meet the demands,” Follingstad said.
“But when you insert population growth that’s beyond the capacities of many watersheds and water systems, and you insert climate change, which is making water, especially in the West, especially in Colorado because of the Colorado River compact, much more scarce — that’s not a sustainable system.”
Follingstad helped create the Growing Water Smart handbook — a guidebook that helps local governments integrate water conservation measures into their land use planning.
Since 2017, Colorado’s Water Conservation Board has worked with the Sonoran Institute and Babbitt Center for Land and Water Policy to host Growing Water Smart workshops in communities across Colorado. The next workshop is May 6-8 in Breckenridge.
The training focuses on reducing the demand for water by utilizing three key strategies: decreasing water use by modifying consumption behaviors; using technology and optimizing building or site designs to use less water; and increasing water recycling.
She says Colorado lags behind other states in terms of integrating water conservation into land use plans. And that lack of governmental guidance has created a false sense of security for some communities.
“Everybody has to do something in order to create sustainability,” she said. “And this is a way of making sure that towns and communities across Colorado, No. 1, understand that there is a state water plan and that the goals in that plan are real and serious and have consequences. And two, that there is a way at the local level that they can make a difference.”
If signed into law, the bill would take effect on Aug. 5.
As Colorado steps up its efforts to reduce air pollution around Denver and across the state, a broad coalition of advocates and Democratic lawmakers are pushing for greater emphasis on “environmental justice” — and it starts with making sure that communities, regulators and industry know exactly what that is.
“There is not a definition, in Colorado state statutes, of what an environmental justice community is,” says Representative Dominique Jackson, a Democrat from Aurora. “So we’re putting that on the books — that certain communities that haven’t had a seat at the table are guaranteed to have a seat at the table.”
On Monday, February 10, Jackson and other lawmakers unveiled HB20-1143, which would increase the maximum penalties that regulators can impose on violators of state air- and water-quality rules, and give affected communities more of a say in how that money is spent.
tion projects” in affected communities.
“This bill is about air and water quality, it’s about health and safety, but most of all, it’s about environmental justice,” said Representative Serena Gonzalez-Gutierrez, a Democrat from Denver and one of the bill’s lead sponsors, at the press conference announcing the bill. “It’s no secret that when corporations put profit over people by polluting the air we breath and the water our children drink, it’s often low-income communities that are the hardest hit. It’s often black and brown communities that are disproportionately impacted.”
Officials at CDPHE are ramping up the state’s efforts to clean up its air following the passage of new state-level emissions rules and an Environmental Protection Agency ruling that classified the Front Range as a “serious” violator of federal air-quality standards. It’s an issue that hits especially close to home in north Denver communities like Globeville and Elyria-Swansea, as well as the town of Commerce City, all located in the shadow of some of the state’s largest sources of air pollution, including the Suncor Energy oil refinery.
Colorado lawmakers are set to consider [SB20-135, Conservation Easement Working Group Proposals] next week that could refund hundreds of millions of dollars to people who innocently bought into the state’s conservation easement tax credit program, only to see officials dismiss the tax credits as worthless and tag them with hefty bills.
The individuals bought the credits from landowners who had received them after protecting millions of acres of property from future development, or their representatives.
But revenue officials eventually said the land wasn’t worth what the landowners claimed and negated more than $220 million in credits, leaving the buyers on the hook for the tab.
That was a decade ago.
After years of public hearings, focus groups and stakeholder conferences, Sens. Jerry Sonnenberg, R-Sterling, and Kerry Donovan, D-Vail, seek to undo the mess and ensure those individuals who unknowingly bought into the program are repaid. House co-sponsors include Dylan Roberts, D-Steamboat Springs, and James Wilson, R-Salida.
The bill is largely the result of a task force empaneled from a bill Sonnenberg successfully pushed last year. The leaders of the task force — a landowner caught in the tax-credit debacle and the director of a land trust that managed many easements — were frequently at odds on the issue but worked together to find solutions.
Policy priorities for the 2020 Colorado legislative session.
Colorado lawmakers returned to the Capitol on January 8th to kick off the 2020 legislative session. Even before bills were introduced, it was clear that the General Assembly will wrangle with issues that will touch every corner of the state and impact the daily lives of Coloradans. Water is one of these key issues.
Despite the optimism from a snowy December, Colorado’s snowpack is now starting to fall closer to average. Although Colorado is perched at 108 percent average snowpack statewide, much of the West Slope remains in drought conditions. With enough snowpack, flurries will melt and become flows for healthy rivers that support all of us. But as water supplies are becoming more unpredictable, sharing a limited water supply—statewide—between urban, rural, agriculture, industry, environmental and recreational needs is the challenge at hand.
Audubon Rockies is working with lawmakers and partners to prioritize water security for people, birds, and the healthy rivers that we all depend upon. Colorado’s birds and people cannot thrive unless our rivers do too. Here are three water priority areas for Audubon Rockies in the 2020 Colorado legislative session.
Funding Colorado’s Water Plan
Water security for Coloradans, birds, and rivers begins with implementing the state Water Plan. In the light of climate change and booming population growth, Colorado’s Water Plan, finalized in 2015, aims to ensure a sufficient supply of water for the various users across the state including environmental, agricultural, municipal, industrial, and recreational needs. Implementing Colorado’s Water Plan is projected to cost $3 billion in total, or $100 million a year over the next 30 years.
In November 2019, voters approved Proposition DD to legalize sports betting and a 10% tax on these casino revenues which will result in an estimated $12 million to $29 million annually, the majority of which will go toward the Water Plan. Proposition DD is expected to generate more than $7 million in new tax revenue for the Colorado Water Plan in 2020, a significant bump up from past funding sources.
At this point, it is not clear how the state will spend these dollars given the various priorities and the considerable Water Plan funding gap. The language in DD was vague and will need refinement and transparency. Stakeholders and lawmakers will likely explore options with the legislature to guide how DD funds are spent on Water Plan implementation.
Audubon will advocate for spending that supports healthy rivers for the birds and people that depend on them, as we support a fully funded Water Plan.
Supporting the Colorado River
In 2019, the Drought Contingency Plan was adopted by the upper and lower Colorado River basin states. One of next steps for Colorado and the other upper basin states is to investigate the feasibility of a demand management program. The Water Resources Review Committee recommended SB20-024 to create a robust public engagement process similar to the development of the Water Plan before adopting any rules or recommendations regarding demand management. While public input is nearly always a positive, this process seems to get ahead of the process established by the Colorado Water Conservation Board’s (CWCB) demand management workgroup. Audubon is monitoring SB20-024.
With Colorado’s water supply becoming more unpredictable and valuable, particularly on the West Slope, concerns were raised by the Water Resources Review Committee to address anti-speculation. Specifically, concerns were raised that agricultural water rights are being sold to entities with no real interest in farming or ranching in Colorado that are holding those rights for future, more profitable transactions. SB20-048, Study Strengthening Water Anti-Speculation Law, would create a working group to explore ways to strengthen anti-speculation laws and report its findings and recommendations to the committee next year. Audubon is in favor of SB20-48 to keep Colorado’s water out of the hands of risky transactions. We need to support our agricultural heritage and the habitats our working landscapes provide.
For the second year, Colorado lawmakers will see the return of two similar bills attempting to expand the instream flow program. Since 1973, the instream flow program has given the CWCB the unique ability to hold instream flow rights—water rights with the sole purpose of preserving the natural environment by remaining in streams or lakes. First, HB20-1037, Augmentation of Instream Flows, is essentially a rerun from last year with key benefits for the Cache la Poudre River near Fort Collins. The bill permits the CWCB to use water for instream flow purposes, if the water has been decreed for augmentation without seeking a further change of use in water court. (Augmentation water restores water uses that are out of priority.) This would create a new pool of water, with lower administrative costs, which could be available for instream use.
The second bill, HB20-1157, Loaned Water For Instream Flows To Improve Environment, looks to expand the existing instream flow loan program. Under the current law the instream flow loan program allows water right holders to loan water for three years out of a 10-year period to the CWCB to preserve water for rivers where there is an existing instream flow water right. The current program participation is not renewable.
HB20-1157 looks to expand the instream flow loan program by increasing the years of participation from three to five years in a ten-year period, and allow for two additional ten-year renewal periods. It also supports greater notification to local water users, provides for an expedited process to address water-short river emergencies, and adds a longer term procedure for loaning water to instream flow decreed river segments for improvement of the environment. The instream flow loan program is completely voluntary and allows greater flexibility for the water right holder to use their property right in a beneficial way.
In 2019, a similar bill to HB20-1157 passed the House of Representatives only to die in Senate Committee. Perceptions around the potential impacts to soil health from fallowed fields and on historical irrigation return flows from leaving water in stream rather than applying it on the land may have caused the bill to fail. With robust engagement and input from Audubon, partners, stakeholders and the Colorado Water Congress over the past year, bill sponsors are more optimistic for successful instream flow loan expansion in 2020.
Audubon supports multiple tools in the toolbox to support healthy rivers, agriculture, and economies. HB20-1157 and HB20-1037 bring greater flexibility and beneficial options for rivers and water right holders.
On the surface, HB20-1072 [Concerning a requirement that the university of Colorado study potential uses of emerging technologies to more effectively manage Colorado’s water supply, and, in connection therewith, making an appropriation, conditioned on the receipt of matching funds from gifts, grants, and donations] appears basic, proposing the state match $40,000 in research funding for the University of Colorado and Colorado State University to study water management technology like remote sensors, cellular and satellite telemetry, areal observation, water resource forecasting and blockchain documentation.
Despite the relatively small dollar amount, the results from this study, said Evan Thomas, the director of the University of Colorado Boulder’s Mortenson Center and co-author of the bill, could create a better understanding of the entire state’s water portfolio and allow for more informed conversations about what can be done to preserve it.
“These technologies offer greater transparency, which can often lead to greater trust,” Thomas said. “Right now you just have a bunch of ditch riders, people you have to pay to go around and look at meters on people’s lands, and it’s expensive, it’s not done very often, the meters aren’t that good, and the farmers are suspicious. It’s adversarial.”
As a result, many water rights holders have strongly resisted any sort of change of use for fear of unintended consequences that could end up interrupting their supply.
Furthermore, because water rights can be reduced if the entire allotment is not put to beneficial use each year, Blake Cooper, Boulder County’s agricultural resource manager, said farmers use as much water as they can, when they can, because they don’t know if it will be there later in the season.
“But,” Thomas said, “if you have more objective and more regular measures of water use and availability, as well as forecasting, and if you could be paid to conserve water instead of being penalized for using less water, it starts to create market incentives that will facilitate relationships (among water users) and let us to be a lot smarter and proactive about making sure that water is available year-round and year over year.”
While these markets already exist, with more robust data on how much water a right holder is using, how much water is currently available, and how much is forecast for later in the season, Thomas said right holders could trade water “quarterly, monthly, or even weekly potentially,” with more certainty it will not effect their own supply later in the year.
Dan Lisco, a hay farmer in Boulder County, installed remote soil moisture monitors on his farm last year. Because he could see when soil moisture was high and wouldn’t absorb any more water, he was able to turn off his center pivot irrigation system for several days throughout the season.
Not only did Lisco say this allowed him to save a little water and nearly eliminate runoff, which can lead to nutrient pollution and soil erosion, but it also cut down on pumping and electricity costs, which helped cover the costs of the monitors.
According to Phytech, the company that makes soil moisture monitors deployed by Lisco, the monitors can reduce a farm’s water use by up to 40%.
With the new technology discussed in House Bill 1072, Lisco could have extrapolated how much less water he was using and how much water was forecast for the rest of the season, then sold off any excess water to another farmer or environmental group looking to keep more water in the river to improve recreation opportunities and wildlife habitat.
Conservation Colorado, which has offices across the state to help organize citizen activism and engagement, will be hosting “Securing Our Water Future,” from 6 – 8 p.m., Thurs., Jan. 23, at 4Corners Riversports. The goal of the event is to discuss what local residents and businesses can do to help curb water usage, build drought resilience and support the goals of the [Colorado Water Plan]. The meeting will be held in partnership with local members of the Colorado Outdoor Business Alliance, which has 40 members in Southwest Colorado. In addition to free food and drinks, the evening will include an expert panel: Celene Hawkins, of the Nature Conservancy and Colorado Water Conservation Board; Marcie Bidwell, from the Mountain Studies Institute; and a representative from the Ute Mountain Ute Tribe.
“The point is not to shame people for their water use,” Goodman said. “Instead, we will present more efficient irrigation strategies and programs.” Goodman said the biggest hurdle to implementing the state’s water plan right now is money. It’s estimated that putting the plan into action will require $100 million a year – which might seem like a lot but is a mere drop in the bucket compared to the state’s other budget items, he said. State legislators are currently looking at adding $10 million to next year’s budget toward the plan, and the recently passed Proposition DD, which legalized sports betting, will add about another $10 million a year (that number will be significantly less in its first year of implementation).
Goodman said he hopes next week’s meeting, in addition to providing a dialogue, will spur local citizens to get active and encourage their representatives to fund the water plan.
“This is a good starting point, our legislators need to know this matters to us and to make it a reality,” he said. “As great as the water plan is, if we don’t have money behind it, we won’t see results.”
Saving water on the Colorado River system, funding the state water plan, and preserving more water for streams are expected to top lawmakers’ water agenda when the Colorado General Assembly begins its work Jan. 8
Saving Water on the Colorado River
Last May the seven Colorado River Basin states signed a drought contingency plan that requires the three lower basin states, Arizona, Nevada and California, to cut water use. It also gives the four upper basin states — Colorado, New Mexico, Utah and Wyoming — the option to create a large-scale water conservation program that would add more water to storage in Lake Powell. That water would be credited to the Upper Basin states and protect them from cutbacks if levels in Powell start to fall below those needed to generate power and to meet water delivery obligations to the Lower Basin. Colorado and other Upper Basin states are exploring whether such a conservation program, known as demand management, is feasible. Any water users who contributed to the new Powell storage account would do so voluntarily and would be paid for their participation.
Where would that water come from? Since irrigated agriculture is the largest user, most of it is likely to come from farmers and ranchers. That troubles Colorado Rep. Marc Catlin, R-Montrose, former manager of the Uncompahgre Valley Water Users Association in southwest Colorado. “We’re still looking at agriculture as a living reservoir that we don’t have to build,” he says.
But Catlin sees “some shifting in the conversation” about sharing water cuts with East Slope communities, where there’s a growing recognition that “if it hurts western Colorado, it hurts the whole state.” That’s because East Slope urban water providers rely on transmountain diversions for much of their water supply. Denver Water, for example, counts on Colorado River imports for half its water. And since most of those rights are junior — acquired after the 1922 Colorado River Compact was signed — the metro area, along with irrigators in the South Platte and Arkansas River valleys that receive water via transmountain diversions, would also be affected by any cutbacks in Colorado River water deliveries. It is anticipated that those entities and regions would participate in conservation alongside West Slope irrigators.
While the Colorado Water Conservation Board (CWCB) is now examining whether to create such a program, lawmakers this year will consider a bill that would require CWCB to involve the public and the state’s nine river basin roundtables in developing a demand management program. Although CWCB would have final say, it would have to submit any draft program to the Water Resources Review Committee and consider its feedback.
Funding Colorado’s Water Plan
Implementing Colorado’s Water Plan is projected to cost $3 billion over the next 30 years, or $100 million annually. The CWCB and the General Assembly have provided some funding for the water plan, but those amounts cover only a fraction of the water plan’s estimated costs.
Enter Proposition DD, approved by voters in November. It legalizes sports betting and assesses a 10 percent tax on casinos’ net proceeds. The state can collect up to $29 million per year, with more than 90 percent of that going into a newly created Water Plan Implementation Cash Fund run by CWCB. Experience with sports betting in other states suggests that no more than $16 million in tax revenue will be generated annually, and during the first year just $7 million is expected.
Lawmakers are expected to discuss options giving them some say in how CWCB allocates that revenue, but those talks may not result in legislation this year.
Sen. Bob Rankin, R-Carbondale, a member of the Joint Budget Committee (JBC) and prime sponsor of the general fund water appropriations last year, does not expect Proposition DD to affect JBC’s water plan funding recommendations this year. Last year, for the first time, lawmakers approved $10 million in general fund money for the water plan. But Rankin cautions that appropriating another $10 million in general funds to support water plan implementation and demand management development will depend on how revenue forecasts shake out.
Rep. Dylan Roberts, D-Avon, said he plans to introduce a bill that would expand the existing instream flow loan program. Under current law, a water right holder can loan water to the CWCB to further preserve water for rivers on stream segments where the board already holds an instream flow water right. The loan may be exercised for no more than three years in a single 10-year period. Roberts’ bill would increase the number of years the loan could be exercised from three to five, and allow for two additional 10-year periods.
The proposed bill is similar to one that passed the House of Representatives but was defeated in Senate committee last year. Opposition to that bill centered on the potential impact on historical irrigation return flows from leaving water in the stream rather than applying it on the land, the effects on soils fallowed for long periods, and the tight comment period allotted after a loan application is filed in which opponents can make their case. Those issues were discussed during the interim session, but the Water Resources Review Committee took no action.
Roberts says that recommendations developed by a Colorado Water Congress working group to provide water right holders with more opportunities to comment and protect downstream users will be incorporated into the new bill. With those changes, he’s optimistic that “we have arrived at a place where more of the water community feels comfortable with the program’s expansion.”
The Water Resources Review Committee recommended three other bills for consideration this session. One would address water speculation, with concerns raised that agricultural water rights are being sold to entities with no real interest in farming that are holding those rights for future, profitable transactions. The bill would create a working group to explore ways to strengthen anti-speculation laws and report its findings and recommendations to the committee next year.
Another bill would task the University of Colorado and Colorado State University’s Colorado Water Center with studying new technologies to improve monitoring, management, conservation, and trading of water rights and report back to the committee in 2021.
The final bill would increase the number of state water well inspectors and require rulemaking to help the state engineer identify high-risk wells for inspection.
And although no legislation has yet been drafted, Sen. Kerry Donovan, D-Wolcott, said she anticipates discussion of how to better dovetail water planning with land use development to ensure large new communities have sustainable water supplies.
Larry Morandi was formerly director of State Policy Research with the National Conference of State Legislatures in Denver, and is a frequent contributor to Fresh Water News. He can be reached at email@example.com.
Fresh Water News is an independent, non-partisan news initiative of Water Education Colorado. WEco is funded by multiple donors. Our editorial policy and donor list can be viewed at http://www.wateredco.org.
Republicans worry the process has been too ‘secretive’ and could hurt the agriculture industry
by John Herrick, The Colorado Independent October 29, 2019
Colorado lawmakers want a greater say in how the state manages its Colorado River water supplies.
The legislative Water Resources Review Committee has endorsed a bill proposal that requires the Colorado Water Conservation Board (CWCB) to consider the committee’s feedback before finalizing a plan to slash the state’s water use in order to send more of it downstream. The Republican-backed proposal won bipartisan support last week from all 10 committee members.
Overuse and climate change is causing a decline in the flow of the Colorado River, which 40 million people, not to mention a major agricultural industry, depend on. The seven states that share Colorado River water supplies are working to ensure enough water makes it downstream to satisfy legal obligations under the 1922 Colorado River Water Compact.
Here in Colorado, water managers are creating a so-called “demand management” plan to reduce the amount of water siphoned off from the river so that more can be stored in Arizona’s Lake Powell and sent downstream during dry years.
But where that water will come from is yet to be decided and figuring it out has been controversial from the start. The water cuts are intended to be equitable, but agriculture accounts for more than 80% of the state’s water use and part of the state’s demand management plan will include paying farmers to irrigate less. Lawmakers worry land will be leased and permanently taken offline for farming, a process dubbed “lease and cease.”
“A lot of us that are still out there running a shovel are concerned that we are going to have to change the way we live so that people that just run a sprinkler head and try to grow more sidewalks in town don’t have to change theirs,” said Rep. Marc Catlin, a Republican from Montrose, during a committee hearing last week.
Volunteers are no longer required to sign non-disclosure agreements. The tension over the plan is illustrative of a much larger and longer tug-of-war between the executive and the state legislature over how to manage the state’s water supplies in the coming years. GOP Sen. Don Coram, a Republican from Montrose, was visibly steamed at last week’s meeting and his distrust resulted in the drafting of a bill that explicitly requires the CWCB to gather public feedback before coming up with a plan. The proposed bill also requires the Water Resources Review Committee to tour the state and gather feedback on CWCB’s draft of a plan.
“We have to develop trust among the general public. And when we started hearing early on (about) non-disclosure agreements and everything else, it kinda reminded me of … the Colorado Water Plan. It was called the ‘governor’s water plan,'” Coram told the committee. He continued, “It is imperative that the general public be involved in this most important process.”
Water managers are concerned such involvement could slow down critical and urgent multi-state negotiations. Arizona lawmakers almost derailed a major agreement on how to share water cuts earlier this year. A deal was struck just hours before the Bureau of Reclamation said it would step in an issue mandatory water cuts.
James Eklund, a former CWCB director who represented Colorado on the Upper Colorado River Commission during last year’s drought negotiations, said climate change is forcing managers to act more swiftly. Efforts by lawmakers to gather more public input, he told The Colorado Independent, could make acting quickly more difficult.
“If there’s another 2002- or 2003-type drought this year or next year, the [demand management] program is going need to be stood up very quickly,” Eklund said. “It’s hard for me to see that happening if you’re scheduling outreach meetings.”
CWCB Director Mitchell was not available for comment. The CWCB declined to comment on how the proposed bill would affect drought contingency planning. Sara Leonard, the marketing and communications director for the CWCB, said the board recognizes the importance of public comments and is committed to stakeholder engagement.
Coram dismissed concerns his bill will slow down multi-state negotiations. “Bullshit,” he responded. He told The Colorado Independent the process fits within the timelines already suggested by the CWCB. There is no hard deadline for finalizing the demand management program. The CWCB plans to issue a status update in July 2020.
The committee also approved a bill that would make it harder to speculate on the state’s water supplies — buying up water rights with the intention of selling them at a profit later — and another dealing with new technologies.
The proposed bills still require committee approval, a vote in the House and Senate, and the signature of Gov. Jared Polis. The legislative session begins Jan. 8.
FromThe Grand Junction Daily Sentinel (Charles Ashby):
The Legislature’s Water Resources Review Committee approved introducing four bills on [October 24, 2019], two of which are aimed at protecting and improving the state’s water supply.
“We have an incredible opportunity to pilot and deploy new technologies that could revolutionize and improve how we manage and consume Colorado’s most essential natural resource,” said Rep. Dylan Roberts, D-Avon, vice chairman of the 10-member committee, which also includes Rep. Marc Catlin, R-Montrose, and Sens. Kerry Donovan, D-Vail, and Don Coram, R-Montrose.
The water speculation measure, which Donovan and Coram are to introduce in the Senate, calls on the Colorado Department of Natural Resources to convene a special work group to study the extent of water speculation in the state, and report back to the committee by 2021…
The new technology measure, which Donovan also is to help introduce, calls on the University of Colorado and the Colorado Water Institute at Colorado State University to conduct feasibility studies on such things as using sensors to monitor surface and groundwater use and quality, and using aerial and satellite technologies to help monitor water supplies.
The other two measures call on the Colorado Water Conservation Board to broaden its public comment rules for its water resources demand management program, and requiring the Colorado Division of Water Resources to hire more well inspectors.
The Water Resources Review Committee advanced Bill 5, which would set a minimum number of six well inspectors during the next fiscal year. The price tag is estimated at $279,000 in the first year, with the original bill tentatively tying funding to whether voters pass Proposition DD in November. The initiative would legalize sports betting, with tax money going to the state’s water plan.
If DD were to fail, the legislature would have to raise well permit fees by 45%. However, the committee approved an amendment to remove the funding alternatives from the legislation until further consideration. The bill would also prioritize high-risk wells for inspection.
Currently, there are two full-time inspectors and a chief inspector who has duties other than inspections…
Earlier this year, the Colorado Office of the State Auditor found that 4,000 wells were constructed in fiscal year 2018. However, only 310 were inspected—and fewer than 10% of the high-risk wells…
Bill 6 would require the executive director of the Department of Natural Resources to recommend changes to the state’s water anti-speculation law. A spokesperson for the House Democrats said that committee members have heard about people purchasing Western Slope water rights, holding them while the price appreciates, and then selling the rights for a profit.
“I don’t think a hedge fund invests in anything without an expectation of making money off of it. Do we know if that’s speculation? We don’t,” said Sen. Kerry Donovan, D-Vail. “Do we have the needed laws in place to prosecute what could be water speculation under the expectation of demand management? That’s some of what we need to look at.”
The committee also advanced Bill 2, which clarifies public comment procedures for any changes to a program for demand management, as well as Bill 3, which directs the University of Colorado and other state agencies to study the feasibility of new water management and monitoring technologies. These include sensors, aerial observation platforms and satellite-based remote sensors.
A local legislator is questioning the need for a new drought contingency plan on the Colorado River that would help boost supplies in Lake Powell and protect the state against a future demand for its water from California, Arizona and Nevada.
State Sen. Jerry Sonnenberg, R-Sterling, has questioned a possible water conservation plan that could become part of the drought plan that all seven states that share the river – Wyoming, Utah, New Mexico, Colorado, Arizona, Nevada and California – signed earlier this year.
As part of that agreement, the Upper Basin states —Colorado, Utah, Wyoming and New Mexico — were for the first time ever given the legal right to store extra water in Lake Powell that is not subject to mandatory releases to the Lower Basin’s Lake Mead. The storage pool is authorized to hold up to 500,000 acre-feet of water — enough for roughly 1 million homes — and could help the Upper Basin meet future obligations to the Lower Basin during an especially dry period on the river.
But now the Upper Basin states are exploring whether it makes sense to create a so-called demand management program that would pay farmers and cities to voluntarily and temporarily slash their water use —and be compensated for it — and to take that saved water and put it in Lake Powell.
Sonnenberg has questioned the need for the program, saying that as long as Colorado complies with the rules of the 1922 Colorado River Compact, its water users should be protected by the courts from any legal demands from the Lower Basin states.
“Are we worried that the Supreme Court would not hold our compact to the letter of the law?” Sonnenberg asked. His questions came during a meeting earlier this month of the state legislature’s Interim Water Resources Review Committee.
In fact, the main concern isn’t the terms of the 1922 compact, but the ability of the Colorado River to continue supplying the 40 million people who rely on its flows. If flows drop too low, due to ongoing drought and climate change, then the Upper Basin might have difficulty meeting its compact obligations to the Lower Basin, putting its water users at risk. Agriculture producers and communities across the state rely on the Colorado River, and major metropolitan areas, including Denver, import Colorado River water to serve their residents and industries.
But Sonnenberg isn’t alone. The likely focus on ag cutbacks troubles Rep. Marc Catlin (R-Montrose), former manager of the Uncompahgre Valley Water Users Association.
“We’re still looking at agriculture as a living reservoir that we don’t have to build,” he said, “because we can just keep chipping away at the acreage.”
And Catlin questioned the temporary nature of the program, citing testimony from earlier in the meeting by Colorado State University climate scientist Brad Udall suggesting stream flows throughout the Colorado River Basin will continue to drop due to higher temperatures, earlier runoff and reduced snowpack, creating a permanent, rather than temporary, need for the water.
Rebecca Mitchell, director of the Colorado Water Conservation Board (CWCB), said the water-saving effort could give everyone breathing room, so that if and when Colorado River supplies drop, the seven states can manage the issue themselves, rather than relying on the courts.
Since irrigated agriculture consumes 85 percent of water in the West, cutting back farm water use to fill the Lake Powell pool is one method that would most likely be used if Colorado ultimately decides to create this conservation program. Mitchell and her agency have committed that no matter the shape the program takes it would be voluntary, temporary, and compensated.
Andy Mueller, general manager of the Glenwood Springs-based Colorado River Water Conservation District, said he isn’t sold on the need for the conservation program, but that Colorado water users need to be looking ahead in order to be prepared. “The concern has to be where we are headed right now,” he said.
Surplus deliveries to the Lower Basin from high water years in 2011 and 2012 have dropped off, he noted, and “we can see a rising risk of the Upper Basin being in a position where we may violate the compact.”
Committee chair, Sen. Kerry Donovan (D-Wolcott), committee chair, said the uncertainty that lies ahead should be dealt with now, “We don’t know [the potential for a compact call] but not knowing that, and the significance of the issue we’re dealing with, is motivation enough to not go through the experience of learning the answer after (we spend) years in the court system.”
The CWCB, which has convened a series of public work groups to study the feasibility of the new drought pool, has not set a deadline for a decision on the program.
FromThe Glenwood Springs Post Independent (Jason Auslander):
A spate of warm weather predicted for the next several days is likely to prompt high flows for this time of year in the Roaring Fork River and other area waterways, forecasters and river watchers said this week.
That’s because the snowpack in the high country remains huge for this time of year, said Valerie MacDonald, Pitkin County’s emergency manager.
“It’s mind-blowing,” she said Thursday. “It still looks like winter in a lot of places.”
On Thursday, the Roaring Fork River at Stillwater Bridge east of Aspen was running at about 400 cubic feet per second, said April Long, Clean River Program manager for the city of Aspen. The river is expected to rise to between 600 and 650 cfs in the next three days or so and remain at about that level for the next week, according to predictions by the Colorado Basin River Forecast Center.
And while that is roughly the river’s historic level at about this time of year, generally the rivers are decreasing in flow now rather than rising, which is what’s happening, according to Long and historical data on the CBRFC website…
The river peaked above Aspen on June 21 about 900 cfs, [Greg Smith] said.
High and powerful waters in the Arkansas River have now caused a partial breach in a Canon City levee and a section of the riverwalk was forced to close…
The impacted section is about 100 feet and city leaders say that while the ground underneath has been stabilized it’s only a band-aid fix and that part of the trail has collapsed…
Kyle Horne, executive director of the Canon City Area Recreation and Park District, said, “We started seeing collapsing trail and other things, and we knew that we were going to have problems. We also saw an increase in groundwater in the parking lot in the low area adjacent to the levee.”
With the river flowing at a powerful 5,000 cubic feet per second for the last few weeks, Horne said, “It then gets into areas it normally doesn’t make it into and it starts chewing away at banks.”
Eventually, causing a slight breach in the levee and part of the trail to collapse.
The U.S. Bureau of Reclamation reduced releases from Ruedi Reservoir earlier this week but hydrologist Tim Miller acknowledged it’s a crapshoot right now whether adjustments will be required as the ample high-elevation snowpack melts out.
Ruedi was releasing in excess of 600 cubic feet per second as part of the Coordinated Reservoirs Operations program for the benefit of four endangered fish. The flows boosted the level of the Colorado River in habitat for humpback chub, razorback sucker, bonytail club and the Colorado pikeminnow upstream of Grand Junction.
Miller said about 5,000 acre-feet of water from Ruedi was released for the endangered fish program. Once the program was over, he dialed the releases back to about 350 cfs to try to ensure the reservoir fills.
The inflow to Ruedi from the upper Fryingpan River dipped to 600 cfs on Tuesday and was at 591 cfs on Thursday. That was about half of the June 22 peak of 1,300 cfs.
The federal River Forecast Center envisioned inflow rising again to 800 cfs and then gradually receding…
The big unknown is how much snowpack remains at high elevations and how it will melt out. Miller said snow telemetry sites in the Upper Fryingpan Valley have melted out. However, those automated sites are at lower elevations. There is still significant snow in higher basins. The warm weather this week is eating into the snowpack. If the inflow to the reservoir spikes again, releases also will increase.
The Mineral County Sheriff’s Office reported the [Rio Grande River] will remain closed [as of June 28, 2019] to all boating because of turbulent water and the ongoing search [for a missing boater]…
Thursday was the first day the river was open to boaters, Rice said. The waterway had previously been closed off due to unsafe conditions. Still, officials advised only experienced boaters should take to the water Thursday, Rice said, and people were urged to use extra caution.
With Colorado’s snowpack at historically high levels and several towns turning their attention from avalanches to potential flooding, most people in the state probably aren’t thinking about preparing for drought years. But state lawmakers, farmers and environmentalists are.
Together, they are working over the summer on potential expansions to a program that allocates water specifically to benefit streams and aquatic habitat in dry times.
The measure failed at the State Capitol this year, but HB19-1218, Loaned Water for Instream Flows to Improve Environment, will be taken up again this summer by the legislature’s Interim Water Resources Review Committee.
The first effort was championed by conservationists like The Nature Conservancy and opposed by some farmers, who worry it could harm water rights reserved for agriculture.
“Our businesses are totally based on the value of those water rights,” said Carlyle Currier, vice president of the Colorado Farm Bureau and a rancher in Molina, Colo. “We’re very concerned that changes would allow that right to be injured.”
Colorado’s Instream Flow Program was established amid the environmental movement of the 1970s to integrate environmental water needs into the state’s intricate system of water rights. Colorado’s water laws work on a priority system: Those whose water rights were established earliest get first dibs in dry years. Before the instream flow law was created, there was no mechanism to establish a water right specifically to keep water in a stream to protect fish and the environment. Rather, water rights were all about diverting that water from the stream.
The Instream Flow (ISF) Program uses water rights within that same priority system to reserve water for environmental purposes, protecting the plants and animals that depend on streamflows.
To date, 9,600 miles of stream have been protected through ISF, according to Linda Bassi, chief of lake and stream protection with the Colorado Water Conservation Board — nearly a quarter of the state’s 40,000 miles of waterways. The CWCB doesn’t have a goal for how many miles of stream it would like to eventually protect, Bassi said, instead taking recommendations from state and federal agencies, local governments and environmental groups for specific stream segments in need of protection.
The CWCB is the only entity that can legally hold ISF water rights. It gets them through establishing new, junior water rights, or by acquiring existing water rights via donation, purchase, lease or other contract. HB19-1218 was concerned with the leasing of existing water rights for ISF purposes.
Under current law, water rights holders can lease their water to the ISF Program only three years out of any 10-year period, and are limited to one 10-year timeline. After that, to maintain ISF protection on a given stretch of stream, the CWCB has to find another water rights holder to lease from, or work out another agreement to preserve the water.
The state can and does employ different means to protect a stretch of water on non-lease years. But “leases are the simplest and easiest way to pull this off,” said Andy Schultheiss, executive director of the Colorado Water Trust, a nonprofit that works with the CWCB on the ISF Program.
Under the proposed legislation, the CWCB would be able to lease water rights for five years out of 10, and the 10-year periods could be renewed twice. Extending protection to 15 years out of 30 will help sustain the environment as drought cycles become more erratic due to climate change, said Aaron Citron, policy advisor at The Nature Conservancy.
“What we’re trying to do is provide a tool that can address critically low stream conditions under a more variable future scenario,” Citron said. Even if HB19-1218 had passed as-is, the expanded ISF Program would not “fully meet the need we think we will see under climate change.”
Both Schultheiss and Citron agree that the way ISF rights are being used today shows that there is more demand for instream flow protection than supply. Two of three available years have been used in a lease of water from Stagecoach Reservoir near Steamboat Springs to benefit the Yampa River, according to Citron, and the Colorado Water Trust is holding off on using the third for when conditions are most dire.
“Last summer, there were stretches when the only water in the Yampa [River] through Steamboat Springs had been leased [for instream flow],” Schultheiss said.
As far as the state’s farmers are concerned, expanding instream flows goes a step too far. The Colorado Farm Bureau opposed HB19-1218 for the primary reason of protecting existing water rights.
“It seems like it was a little bit of a backdoor to expand ISF rights without going through the vetting process,” said Currier. “That’s a little frightening to those of us who own water rights.”
To establish a new ISF water right on a particular stream, there is a three-year process that ends with a review by Colorado’s water court to determine, among other things, that the instream right won’t negatively impact other water rights holders. Extending lease periods that significantly without a return to water court could harm farmers, Currier said.
Under the proposed rules, Currier worries that two five-year leases could be stacked back-to-back, leaving water in streams for 10 consecutive years while fields go fallow.
The Farm Bureau is also concerned about a third proposal for the ISF Program. Currently, leased water rights can only be allocated for instream purposes in a quantity great enough to preserve the natural environment “to a reasonable degree.” The Nature Conservancy wants to go beyond preserving existing conditions to allow improvement of natural conditions as well.
“That language is a little troubling to us,” Currier said. “That is not a quantitative term. Who determines what’s an improvement? What exactly does that mean?”
The CWCB already has the authority to acquire water rights that improve the environment, Citron said, just not for ISF leases.
This and other ISF issues will be discussed at the next meeting of the legislative interim water committee as part of the 2019 Colorado Water Congress annual summer conference, being held Aug. 20-22 in Steamboat Springs. Both sides remain hopeful that a compromise could be reached, though Currier noted farmers are resistant to making changes that they feel haven’t been properly vetted for potential negative impacts.
“We’re not out to destroy the environment; we’re more dependent on it than the average citizen,” Currier said. “We really feel the existing water law is written fairly well and we don’t see a lot of need for changes to that.”
If the interim water committee is able to craft new language that satisfies agricultural and environmental interests, a new bill will be introduced during the next legislative session, which convenes Jan. 8, 2020.
Shay Castle is a freelance journalist based in Boulder, Colorado. She can be reached at firstname.lastname@example.org