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.