“There was a lot of talk at council about it being a bold decision, but I don’t see it that way. Not only is it what we need to do, but we have all the tools to do it cost effectively.” — Mayor Ian Billick
Crested Butte, that most lovely of Colorado mountain towns, now vibrant in summer flowers and always in the bold colors of Victorian storefronts, has now entered into the fractious national debate about natural gas.
The municipality decided Aug. 3 that it will no longer allow natural gas in new buildings. Major remodels will be required to be electric-ready. It’s the first jurisdiction in Colorado to take this action.
Others may soon follow, posing the question of whether Colorado will soon get more rambunctious in its debate about how to effectively achieve the reduction in emissions identified in a 2019 law. That law specified economy-wide emission reductions of 50% by 2030 and 90% by 2050.
Buildings must necessarily be part of this drawdown, and that puts the focus on natural gas, which provides space and hot-water heating for more than half of Colorado buildings. Cars last 15 years or longer, but upgrades of buildings often don’t occur for decades.
The Colorado Greenhouse Gas Pollution Roadmap adopted in January 2021 identified emissions from buildings as a relatively small but vital sector. “Even though the emissions reductions from these actions will be relatively modest in the near term,” the roadmap says, “they will grow to become very significant in the period after 2030.”
Berkeley in November 2019 became the first municipality in the United States to ban natural gas in new construction. Since then 80 other towns, cities, and other jurisdictions have followed, first in California but then in other states, too.
In response, 23 states—including five of the seven states bordering Colorado—have adopted laws that prohibit such local regulations. That’s a ban on bans, if you will. An effort was underway in 2020 by oil-and-gas interests in Colorado to put a similar ballot measure, called preemption, before voters. The effort was withdrawn after negotiations with Colorado Gov. Jared Polis.
Colorado legislators in 2021 instead passed several bills that collectively start squeezing natural gas from buildings without blanket bans. The most important of these bills, SB21-264, requires the four regulated utilities that sell natural gas in Colorado to submit clean-heat plans beginning in 2023.
This clean-heat requirement along with other laws adopted in 2021 nudge Colorado’s four regulated utilities that deliver natural gas toward helping their customers convert their homes and businesses from natural gas to electricity. Xcel Energy, the largest, sells both gas and electricity, so the loss of gas sales will be offset by increased electricity sales. Atmos, the supplier of natural gas to Crested Butte, does not sell electricity, so it will have to cut its emissions in other ways.
Crested Butte might seem an unlikely trailblazer. It’s smallish, with 1,334 full-time residents. The conventional wisdom holds that the big liberal bastions wade into changes first, which then get gradually introduced into the more rural outposts. But neither Denver nor Boulder, though they have started squeezing emissions from buildings in significant ways, have gone quite as far.
Denver, for example, requires heat pumps for space heating and heat-pump water heaters for existing buildings — but not homes — at the time of system replacement, starting in 2024 to 2027. That’s not an explicit ban on natural gas, although it may come close,
The most important aspect of Crested Butte’s example may be its colder climate. It sits at 8,909 feet. Other places that are actually lower in elevation lay claim to the dubious distinction of record cold, but Crested Butte knows chill, an average low of 6 below during January, its coldest month. Town officials, after examining the available technology, including air-source heat pumps, concluded that nobody will suffer in this transition to building electrification.
If it can work in Crested Butte, surely it should work in Castle Rock or Colorado Springs or any number of other places.
Mark Reaman, the editor of the Crested Butte News, called the measure “largely symbolic in the sense it will not save the world. Not even close,” he wrote in a column titled “Symbolism Matters.” “But it could send a message and set an example to those living and visiting here. It is tangible action applicable at the local level.”
Crested Butte, he added, “is one of those towns that punches above its weight given the people it draws and the attitude that doing something locally matters.” His offered the metaphor of a seed now planted “that might grow beyond our little garden.”
To get an understanding of how Crested Butte got to where it is and how it fits with the bigger picture now evolving in Colorado, Big Pivots conducted an e-mail interview with three people:
Ian Billick is the mayor of Crested Butte. He ran on a platform of climate change action and housing. He is also a biologist who manages the Rocky Mountain Biological Laboratory, where scientists from across the country gather during summers to study climate change and other topics at an elevation of 9,000-plus-feet.
Christine Brinker is the senior buildings policy manager for the Southwest Energy Efficiency Project. She has been deeply involved with helping draft the state legislation and local policies that seek to pivot Colorado’s buildings to fewer emissions.
Mike Foote is a public-interest environmental attorney from Boulder County who served in the Colorado Legislature from 2013 to 2021. As a Democratic legislator, he co-sponsored legislation in 2019 that set Colorado on its march to realize deep, deep decarbonization of its economy – buildings being a particularly knotty problem to solve.
Big Pivots: As mayor of Crested Butte, Ian, can you identify a precise moment when the vision began to take place of eliminating natural gas in new buildings and those with major remodels?
Ian Billick: Several years ago, and before I joined the council, Crested Butte adopted an aggressive climate action plan. New building codes are issued every three years and given how much buildings contribute to carbon emissions, it made quite a bit of sense to consider electrification in adopting the new code.
Pivots: Let’s talk about that aggressive climate action plan. Crested Butte in around 2007 joined a great many towns and cities in adopting a resolution favoring renewable energy. It was my impression that nothing much then happened, perhaps because nobody knew where to start. What explains the more muscular approach?
Billick: A combination of an experienced town staff that has identified meaningful leverage points and a Town Council that has collectively made climate action a top priority. Also, improvements in building technology, including air source heat pumps, along with increases in natural gas prices, make electrification more cost effective, independent of climate impacts.
Pivots: Striking to me was the relative lack of discussion about the adequacy of alternative technologies to natural gas. Was there concern that air-source heat pumps would be unable to perform satisfactorily in Crested Butte’s relatively cold climate?
Billick: The efficiency of air-source heat pump technology declines significantly with colder temperatures. However, the technology works much better in very cold temperatures than it did even a few years ago and can be effectively combined with supplemental heat systems. It’s an example of how recent improvements in technology have made this move possible.
Pivots: The adequacy of the technology was not a major talking point? And do I understand that you had the support of local building contractors?
Billick: We did not spend a lot of time talking about the adequacy of the technology. We had a consultant, August Hasz, with the Resource Engineering Group, which has substantial experience building fully electrified housing in similar, high-altitude, cold environments. We also had local builders who have built successfully here without natural gas express their support. For me, that was very compelling.
Pivots: Let’s explore both of these. What other high-altitude, colder environments? And your local builders – if they are comfortable with the new technology, what do you think that says about places like Vail or Summit County?
Billick: Resource Engineering Group cited projects in Basalt Valley and Telluride. An affordable housing project recently opened in Gunnison that is all electric.
Pivots: You have cited analysis by Rocky Mountain Institute that electrification will usually reduce costs. Is that comparison of gas vs. electric in the completed building? Or is that in cost savings over time?
Billick: One thing we learned is that the cost-benefit analysis of electrification versus natural gas is complicated; you can’t say that one technology will always be cheaper. But RMI has found that in many circumstances both up-front costs as well as lifetime costs will be cheaper with electrification. For example, there are costs to hooking a home up to natural gas that are avoided with full electrification.
Pivots: How many unbuilt lots? Any potential annexations? What application might you see in remodels? Would this have been a harder decision had there been more real estate involved?
Billick: We have about 60 unbuilt lots. Additionally, we have an affordable housing project involving 60-80 units coming online, which will be built to the new code. We have no annexations in the pipeline. Major renovations will trigger a requirement that buildings be electric ready. For me, the decision was not influenced by the number of units involved. There was a lot of talk at council about it being a bold decision, but I don’t see it that way. Not only is it what we need to do, but we have all the tools to do it cost effectively.
Pivots: Your law allows an exemption. Please explain.
Billick: We allow commercial kitchens to use natural gas for cooking.
Pivots: The Crested Butte News reported the major pushback was from those who urged a go-slower approach. For other towns considering following in the footsteps of Crested Butte, how would you describe that pushback? And why did the council reject that go-slower approach?
Billick: We had a working group analyzing this option through the spring, including holding a question and answer session for the public. The CB Town Council had a work session, as well as two public hearings. By the final public hearing while some disagreed with the policy, no new information was emerging, nor did council feel that it was missing any information. We had the information we needed to make a decision, so we moved forward.
Pivots: I was struck by the fact that the council was unanimous. Can you explain the unity on this? Does it extend to other decisions?
Billick: The council works very well together, but we don’t always agree. The council has been very clear, however, that climate action is a priority that is shared across the board.
Pivots: What repercussions beyond Crested Butte do you hope your town’s actions will have?
Billick: If we can make it work in an environment as extreme as Crested Butte, it is possible to make it work across the country.
Pivots: Christine, when do you think we will hear about the next local government in Colorado to limit or ban natural gas in homes and buildings?
Christine Brinker: Most likely in the next few months. While they may not outright prohibit natural gas, they will likely take steps to either gradually move away from it or at least reduce some of the negative impacts. For example, some local governments in the northwestern metro area are working together on a policy that would give builders a choice between either all-electric or, on the other hand, natural gas with extra energy efficiency.
Having said that, Crested Butte’s example will surely give these and other local governments the courage to take stronger climate action and take bolder steps toward all-electric new construction.
Pivots: Colorado has adopted several laws in the last two years that seek to reduce emissions from buildings. How would you describe the general approach?
Brinker: The approach has been to recognize the urgency of the climate crisis while at the same time trying to orchestrate the transition in a way that protects our workers and families. Recent bills had extensive negotiations and “stakeholdering” with builders, building owners, labor, local leaders, equity groups, and more, because ultimately, the policies need to be workable, practical, and impactful for as many Coloradans as possible.
From a policy standpoint, the original 2019 law set an overall emissions reduction goal 90% by 2050, and individual bills since then are going sector-by-sector to help reach those goals. That’s where these bills governing buildings fit.
Pivots: How does the law passed in May, HB22-1362, titled “Building Greenhouse Gas Emissions,” define the paths forward for local jurisdictions? Do you see various paths for different communities?
Brinker: That law sets the floor, the minimum, for resilient and energy-efficient construction when local governments update any other building codes. This is in recognition that many homebuyers and renters don’t have the ability to choose efficient and healthy homes – they have to “take what’s out there.” Better energy codes make sure homes and buildings are built right at the outset.
Notably, the law still allows natural gas — but requires that new construction at least include the wiring for future all-electric appliances like heat pumps. And it allows local governments like Crested Butte to go above the minimum if they want.
Pivots: Air-source heat pumps remain fairly expensive. Do you see this changing?
Brinker: The costs of the technology have fallen significantly in recent years while performance improved. The next stage of cost reduction will partly come from contractors here getting more familiar with the latest heat-pump technology, something being helped along by trainings from Xcel Energy and others.
Also, heat pumps have a new batch of incentives available because of how much they help our air quality and climate – including rebates from Xcel Energy and other utilities, a 10% tax credit from the state, and tax credits from the Inflation Reduction Act.
Pivots: As a former state senator, Mike, I would like your read on the political implications of this ban adopted by Crested Butte. Colorado’s policy so far has been a firm but still gentle squeeze of emissions, both methane and carbon dioxide, from buildings. The clean heat law, for example, stipulates that consumers will always retain choice.
Does the mandate by Crested Butte put the Polis administration into a place it would prefer not to be? Or are the numbers in Crested Butte just too small to be consequential?
Mike Foote: Local governments in Colorado have significant autonomy when it comes to their building codes. Crested Butte’s actions are consistent with that tradition of local control. Certainly some state actors and the oil-and-gas industry will take notice of it.
It is highly unlikely, even after this fall’s elections, that there will be a successful effort in the legislature to limit the ability of local governments to do what Crested Butte did. Some gas proponents have advocated for a statewide “energy choice” ballot measure that would prohibit localities from requiring non-fossil energy in their codes. This is sometimes called a “ban on bans.” At some point that effort could get more traction if the industry decides to fund a statewide campaign. The threat of the industry going to the ballot is always there, but it shouldn’t dissuade local governments from taking climate action in my opinion.
Pivots: New York Gov. Kathy Hochul vowed to pass a statewide law that would ban natural gas by 2027. Assuming Colorado Gov. Jared Polis is reelected this fall, can you envision him attempting to do the same? Why or why not?
Foote: We haven’t seen Governor Polis propose a policy like that during his first four years, but I wouldn’t be surprised if some members of the General Assembly were thinking about it. The fact of the matter is new gas usage must be substantially curtailed within this decade for us to avoid the worst effects of climate change. There are not too many easy options left to achieve that, at least in Colorado.
Trying to recommend ways to improve on Colorado’s anti-water speculation law is a tough job, primarily because the state’s constitution, statutes and legal precedence already do a good job of it.
It doesn’t take much to set off alarms in Colorado’s water community, and in 2019 there were purchases of irrigated land by entities not normally associated with water use. According to water journalist Allen Best, “large, water-rich ranches in the Grand Valley on the West Slope by investment banks” tripped all kinds of alarms across the state. Of all the nightmares that keep Colorado water interests awake at night, water speculation is among the spookiest.
During the 2020 legislative session, the General Assembly passed Senate Bill 20-048, which directed the director of the Colorado Department of Natural Resources to convene a working group to recommend ways to shore up the state’s protections against water speculation.
Joe Frank, manager of the Lower South Platte Water Conservancy District, was named to the 22-member working group, which submitted its final report, titled “Report of the Work Group to Explore Ways to Strengthen Current Water Anti-Speculation Law,” last month on Aug. 13, just two days short of the deadline.
Critics immediately denounced the report, saying it has little value because it doesn’t actually make any recommendations to the Legislature. In an interview with Best, Frank said there’s still work to be done before any new laws can be written.
Talking last week with the Journal-Advocate, Frank said it’s going to be difficult to figure out ways to strengthen something that’s already quite strong.
“We took it upon ourselves to define two types of water speculation,” Frank said. “There’s traditional speculation, which is already pretty well addressed. And then we defined what we call ‘investment water speculation,’ and that’s harder to get your hands around.”
Under Colorado water law the water in Colorado is a public resource for beneficial use by public agencies, private persons and entities. A water right, which is owned, is created to use a portion of the public’s water resources, and is subject to water availability and under the terms specified by a water court. Those specifications — date of priority, physical location, and the amount that can be used by the water right – appear in what is called a decree.
Cities own water rights and the infrastructure to deliver such rights, so people are purchasing water from the city even though water in Colorado is a public resource. Water rights are real property rights and can be sold and traded as long as it is continued to be put to beneficial use…
According to Frank, about the only way to prevent “investment water speculation” is to define actions that prove intent, and that raises the specter of yet another agrarian nightmare; trampling on a property owner’s right to sell his property.
“Is it the intent to come in and profit from the increased value of water?” Frank asked. “It has to do with point of sale and real property. But can you pass a law that says you can interfere with the market?”
In other words, in order to prove intent, it would be necessary to examine and have some legal control over the sale of land and water rights. In theory, an investor from Manhattan could buy several irrigated farms, allow the water to be used for crops for a period of time while the dollar value of those shares increases, and then sell those shares to, say, a growing Denver suburb and pocket the profit.
State Sen. Don Coram, who wrote SB 20-048, has gone on record saying he doesn’t want the state to get involved in curtailing property rights.
Frank said there may be no easy way to write anti-speculation legislation, but rather it may take a series of smaller actions.
“The over-arching issue that we have to solve is supply and demand,” Frank said. “When there’s more demand than supply, that drives up the price of water. Conservation and efficiency only go so far, and nobody is creating any more water.”
FromThe Grand Junction Daily Sentinel (Dennis Webb):
Tax disincentives, requiring water rights to remain tied to irrigated agricultural land, and penalizing or prohibiting owners of water rights from being paid to not divert and use water are among concepts a water anti-speculation task force has forwarded for consideration by the state Legislature.
The task force’s report focuses on eight conceptual changes in law that the group says could reduce investment water speculation on a large scale, but the 22-member group was unable to come to a consensus on any recommendation.
A state law, Senate Bill 20-048, directed the state Department of Natural Resources to form the work group to explore ways to strengthen current water anti-speculation law…
The task force delivered its 66-page report to the state Water Resources Review Committee [August 13, 2021]. The task force included representation from the legal, nonprofit, municipal and agricultural communities and from a variety of water basins, along with several state-level officials.
Ultimately, group members couldn’t all see eye- to-eye on how to address the challenge.
“The Work Group wants to stress to the Committee the complexity and nuance of the problem identified in SB 20-048 and the fact that any concept that would be effective in reducing or preventing Investment Water Speculation also comes with significant drawbacks,” the report says.
It said the group is diverse, with varied and sometimes conflicting interests, and some of its members found that any concept, “even if further developed to minimize drawbacks, is unacceptable.”
Common drawbacks of the concepts included the high cost of implementation, the time and cost impacts of water transactions for all water users, and the potential reduction in the sale price of water rights and thus their value as property, which presents “a risk to the current owners of irrigation water rights,” the report says.
According to the report, investment water speculation “violates the intent of Colorado’s anti-speculation doctrine because the investor’s primary goal is profit from the water value rather than beneficial use of the water (and the profit that comes from the use).”
PROFITING OFF WATER RIGHTS
Speculation concerns center around things such as water brokers buying water rights and quickly flipping them to a third party for profit, or investors continuing to use water rights for their historical use with the primary goal of later profiting from the increased value of water through a sale, lease or payment for nondiversion of water for the benefit of a downstream user. Another concern is investors cornering a water market, driving up the price for others in need of water…
Other concepts include:
eliminating or reducing the agricultural tax benefit for lands from which water is removed, to reduce the benefit for lands converted from irrigated uses;
requiring water to be tied to the land unless irrigated land is going to be changed to a new land use;
funding and/or creating a right of first refusal before water rights are sold, which would allow for the purchase of the rights by the state or another public entity for long-term irrigation use for public benefit;
creating a statewide process, such as through water courts or a state agency, to identify and prohibit investment water speculation;
encouraging local governments to police investment water speculation through their “1041” powers, which get their name from a law that already lets counties require permits for things like reservoirs;
taxing the profit from sale or lease of water previously bought for investment water speculation purposes;
establishing a maximum rate of water right price increase and imposing higher taxes when exceeded.
One concept [Peter Fleming] was interested in but wasn’t seen as ultimately likely to have a large-scale impact on speculation would be modifying the state’s land conservation easement statute as incentive to tying water rights to their place of historical use.
Fleming said it’s unfortunate there are no recommendations, but even if there were, it would have been a long road to any change in law.
A working group submitted a report on Friday that includes several “concepts” that it says the Colorado Water Resources Review Committee should consider when exploring how to bolster the state’s anti-speculation law.
The 22-member group, which includes members from the legal, nonprofit, municipal, and agricultural sectors, convened due to the passage of Senate Bill 20-048. The group submitted a total of 19 “concepts” organized into five categories that the committee will consider when making future regulations.
Some of the recommendations include modifying current legal proceedings to give water courts a more active role in anti-speculation cases, encouraging local governments and state police to invest in water speculation, and establishing a maximum water rate increase with corresponding tax penalties for those who overcharge.
In its final report, the working group said it does not recommend any of the concepts for implementation due in part to the drawbacks members identified during their sessions and a lack of consensus among the group.
Instead, it recommended that lawmakers “gather additional feedback from multiple and diverse stakeholders within Colorado for any change in law considered.”
Water speculation – defined as obtaining a water right without a plan to put the water to beneficial use – is a foundational issue for the state of Colorado.
The state’s constitution expressly provides that water is “declared to be the property of the public, and the same is dedicated to the use of the people of the state.” This means that no one in the state can horde water without a legitimate need.
The approach has become known colloquially as the “Colorado Doctrine” in the water court system, according to the working group’s report.
Anti-speculation laws are also gaining more public attention as drought conditions are causing issues for some Colorado ranchers.
Gov. Jared Polis recently visited with the local agricultural communities in Craig and Steamboat Springs and declared that the recent “historic” water plan won’t be enough to help ease the conditions. The plan will spend $50 million to increase conservation and address the gap between supply and demand.
“This is an important part of who we were, who we are and who we will be now in the future,” Polis told the Craig Daily Press.
As directed by the General Assembly, Dan Gibbs, the Executive Director of the Department of Natural Resources, convened the Work Group to explore ways to strengthen current water anti-speculation law. The Work Group included a diverse collection of Coloradans from the legal, nonprofit, municipal, and agricultural communities and from a variety of water basins throughout Colorado, and was co-chaired by Scott Steinbrecher, Assistant Deputy Attorney General and Kevin Rein, State Engineer as members.
The Work Group Co-chairs provided the following statement on the release of the final report:
”The quality and comprehensive nature of the report is the direct result of the extraordinary effort of the Work Group, which was composed of members with different backgrounds, experiences, and perspectives. The diversity in perspectives and each member’s willingness to contribute based on their experience and unique background was what led to a final report that will be informative to the Water Resources Review Committee, giving them the information needed in order to decide whether to make changes to Colorado’s body of anti-speculation law.”
State officials are preparing for a future with less water by developing rules and guidance for water users to measure how much they are taking from streams.
State Engineer with the Colorado Division of Water Resources Kevin Rein is planning a rule-making process on measurement devices that includes stakeholder input. Although state engineers in each water division have the authority to enforce the requirement of measurement devices, Rein said drafting more formal rules through an administrative rule-making process, instead of an ad hoc push like in the Yampa River basin, would affirm that authority. Rules would also include specific technical guidance on the best types of flumes, weirs and meters to use for different types of diversions.
“The idea about rule-making is that we would have consistent guidance across the basin, developed through a formal process,” Rein said. “One thing I’ve found is that when you have stakeholder involvement in the development, then you have stakeholder buy-in during the implementation.”
Yampa/White/Green river basin
Division 6 Engineer Erin Light is still taking a lenient stance with water users in the White and Green river basins while the measurement rules are developed. In fall 2019, Light ordered nearly 500 water users in the Yampa River basin to install measuring devices to record their water use and initially received some push-back from agricultural water users unaccustomed to measuring their diversions.
In March 2020, Light issued notices to water users in the White and Green, but decided to delay sending formal orders after the COVID-19 pandemic disrupted the economy. Orders are still on pause while Rein’s office develops the measurement rules, which would apply across the Western Slope.
“It made more sense to wait for the measurement rules to at least get started, maybe not necessarily get completed, but allow Kevin to get out and start doing the stakeholder meetings and encourage these structures to be installed without orders,” Light said.
Compliance is gradually increasing across the basin, but at a slower pace than Light would like. In January 2020, 49% of diversions in the Yampa River basin did not have a measuring device; as of April 2021, 42% were still without one. White River basin compliance has improved from 83% without a measuring device to 68% over the same time period; water users in the Green have gone from 69% to 49%. As a whole, Division 6 has gone from 55% of diversions without measuring devices to 46%.
“I would have hoped that we would have had more compliance at this point,” Light said. “I look at those numbers and think we still have some work in front of us and how are we going to accomplish our goal, which is to assure that all of these structures that we maintain records on have operable headgates and measuring devices.”
In some basins on the Western Slope, nearly all diversions already have measuring devices. For example, in the Roaring Fork and Crystal river basins, about 95% of the structures have devices, according to Colorado Department of Natural Resources Communications Director Chris Arend. That’s because there has traditionally been more demand and competition for water in these basins, he said.
Water shortages drive measurement push
The push for Western Slope diverters to measure their water use comes down to impending water shortages. Division 6, in sparsely populated northwest Colorado, has traditionally enjoyed abundant water and few demands, but as climate change tightens its grip on the West, there is less water to go around. Calls by senior water users have gone from unheard of to increasingly common in just the last few years.
“We definitely have systems on call that have never been on call,” Light said of current conditions in the Yampa.
A call occurs when a senior water rights holder is not getting their full amount they are entitled to. They place a call with state engineers, who shut off more junior water rights users so the senior user can get their full amount. Under Colorado’s prior appropriation system, the oldest water rights have first use of the river.
“If you don’t have a measuring device during a call, we are shutting you off, period,” Light said.
As the threat of a Colorado River Compact call and the possibility of a state demand-management program grow, state officials say the need to measure water use grows, too.
A compact call could occur if the upper-basin states — Colorado, Utah, Wyoming and New Mexico — were not able to deliver the 75 million acre-feet of water over 10 years to the lower basin states — California, Arizona and Nevada — as required by the 1922 compact. Colorado water managers desperately want to avoid this scenario, in part because it could trigger mandatory cutbacks for water users.
If a compact call were to play out, measuring devices would be crucial, because as Rein says, you can’t administer what you can’t measure.
“We need to better measure what has been diverted, so having measurement rules and therefore measuring devices in place will be critical to prepare for and implement compact administration, should it happen,” he said.
The state is also currently exploring a potential demand management program, which would temporarily pay irrigators to not irrigate and leave more water in the river. The goal would be to boost water levels in Lake Powell and avoid a compact call. But in order to participate in the voluntary program, feasibility of which is still being evaluated, irrigators need to first measure their water diversions.
“We would have to know how much they were using in the years before, before we can give them credit for not using it,” Rein said.
Low interest in grant funding
One of the reasons Light originally paused enforcing the measurement device requirement in the White River basin was to give conservancy districts time to secure grant money to help irrigators pay for the potentially expensive infrastructure. But there was not much interest from water users in getting grant money, according to Callie Hendrickson, executive director of the White River & Douglas Creek Conservation Districts.
“We did not proceed with (securing grants),” she said. “We didn’t hear from very many people that they were seeking funding.”
The story was similar on the Yampa. The Upper Yampa Water Conservancy District had a $200,000 pot of money — half of it state grant money and half from the district — to reimburse water users for installing measuring devices. Irrigators can get 50% of their costs covered, up to $5,000 through the first tier of the grant program. According to Public Information and External Affairs Manager Holly Kirkpatrick, despite a very simple application process, the program has doled out just under $40,000 so far for about 20 projects.
“I had certainly hoped to have more interest in the first year of the program,” she said.
As Rein plans for webinars and meetings with water users later this summer and fall, the situation in the Colorado River basin grows more dire. The Bureau of Reclamation this week began emergency releases from Upper Basin reservoirs to prop up levels in Lake Powell to try to maintain the ability to produce hydroelectric power at Glen Canyon Dam.
“I recognize the value in having measurement rules as soon as possible because, yes, they would be extremely helpful if we need to take measures toward compact administration,” Rein said. “Having more data sooner rather than later is important.”
It’s going to be difficult for legislators to strengthen Colorado’s already strong water anti-speculation laws, but that’s what a study group is looking at.
Joe Frank, manager of the Lower South Platte Water Conservancy District, told his board’s executive committee Tuesday it will be tough for the study group to come up with viable recommendations to the legislature.
The study group was authorized by Senate Bill 20-048 during the 2020 legislative session. The bill “requires the executive director of the 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.”
Frank said the 18-member working group, which has been meeting since November 2020, is “a pretty diverse group,” and that has caused some concerns about the viability of recommendations that it may propose.
“The hard part, in my mind, is how you distinguish between traditional speculation and investment speculation, and how you protect people’s property rights,” Frank said. “How do you tell a landowner who he can and can’t sell his property to? (Some states have) laws about selling (farmland) to people outside the state, but I’ve talked to some (Colorado) tenants whose out-of-state landowners are really good landlords.”
Water speculation is generally thought of as buying water rights without having an immediate beneficial use for the water, hoping to later sell the water for a profit. The concern is that agricultural water would be taken off the land and sold out-of-state. Current water law requires that anyone buying water shares or buying ag land with a water right must have an immediate beneficial use for the water.
That has led to the practice “buy and dry,” in which cities and utilities buy agricultural land and use the water for their own purposes. One example is when Sterling purchased the Scalva Bros. farm in the early 2000s so it could use the farm’s strong water right to augment pumping for municipal use. Although the water is still being used to irrigate crops on the farm, eventually it will have to be taken off the cropland and the land returned to a natural state.
Board member Gene Manuello said anti-speculation legislation can be a double-edged sword. He referred to a 2009 Colorado Supreme Court decision in which the Pagosa Area Water and Sanitation District and San Juan Water Conservancy District were denied permission to build Dry Gulch Reservoir. Trout Unlimited sued the districts claiming their projections of water needs over the coming 50 years were excessive and amounted to water speculation.
The high court ruled that the Pagosa area water districts, which supply water to nearly all of Archuleta County, had not sufficiently demonstrated a need for the amount of water they claimed, based on projected population growth and water availability over a 50-year planning period…
A report on recommendations from the study group is due in mid-August, Frank said.
In other business Tuesday the executive committee when into executive session to discuss legal and negotiation issues concerning the proposed Fremont Butte project. That project would store excess South Platte River runoff in Prewitt Reservoir and a new reservoir south of there, to later be pumped upstream for use by the Parker Water and Sanitation District.
State work group trying to balance risks from investors, negative impacts to agriculture
Melting snow and flowing irrigation ditches mean spring has finally arrived at the base of Grand Mesa in western Colorado.
Harts Basin Ranch, a 3,400-acre expanse of hayfields and pasture just south of Cedaredge, in Delta County, is coming back to life with the return of water.
Twelve hundred of the ranch’s acres are irrigated with water from Alfalfa Ditch, diverted from Surface Creek, which flows down the south slopes of the Grand Mesa. The ranch has the No. 1 priority water right — meaning the oldest, which comes with the ability to use the creek’s water first — dating to 1881.
What makes the ranch unique among its Grand Mesa-area neighbors is its owner. Conscience Bay Company, a Boulder-based private real estate investment firm, bought the property in 2017.
That fact alone has brought its owners scrutiny from neighbors and Western Slope water managers. Conscience Bay and its president, Eli Feldman, have been accused of water speculation — which means buying up the ranch just for its senior water rights and hoarding them for a future profit.
That is an accusation Feldman denies.
“Any time you come into a place that you’re not from, people are curious at best and skeptical and concerned at worst,” he said.
The ranch raises organic beef using regenerative techniques that operators say are better for soil health. Conscience Bay holds grazing permits on tracts of public land in western Colorado and Utah where the cattle feast on grass before being sent to California to be finished, slaughtered and sold under the brand name SunFed Ranch.
To the charges that he’s doing something untoward by investing in the ranch’s land and abundant water rights, Feldman said he’s just like any other major water user in the state putting it to beneficial use. The ranch is using the water to irrigate, he said.
“We’re growing grass and feeding it to cows and trying to improve the ground, improve the soil health and make a business out of it,” Feldman said.
Speculation work group
The conversation around water speculation has been heating up in Colorado in recent months. At the direction of state lawmakers, a work group has been meeting regularly to explore ways to strengthen the state’s anti-speculation law. The topic frequently comes up at meetings of Western Slope water managers: the Colorado River Water Conservation District, basin roundtables and boards of county commissioners.
Investments such as Feldman’s have been of interest to the work group, which consists of water managers and users from around the state and is chaired by Kevin Rein, state engineer and head of the Division of Water Resources.
“I think it’s a valid concern because they do see unusual parties, large parties that, again, aren’t the typical parties, purchasing those water rights, and so that’s the concern,” Rein said. “Are they speculating or are they purchasing just so they can flip it, as people say, in a few years for more money?”
Under Colorado law, a water-rights holder must put their water to “beneficial use,” meaning continuing to use the water for what it was decreed in order to hang onto it. But Colorado also treats the right to use water as a private-property right. People can buy and sell water rights, change what the water is allowed to be used for and, if given a court’s blessing, move the water from agricultural use to growing cities.
This system, used widely in the western United States, creates an opening for investors who see water as an increasingly valuable commodity in a water-short future, driven by climate change. A private-equity fund, Water Asset Management, is now the largest landowner in the Grand Valley Water Users Association, which provides water for farmers in the intensely irrigated valley, a short drive from Harts Basin Ranch. The purchases of the New York City-based company have raised suspicions among water managers and prompted the formation of the speculation work group.
Similar concerns have cropped up in agricultural communities throughout the West. A water transfer in Arizona from agricultural lands on the Colorado River to a rapidly expanding Phoenix exurb recently stirred up controversy. In Nevada, Water Asset Management is trying to market water held in an underground aquifer.
Colorado’s current anti-speculation doctrine is based on case law that says those seeking a water right must have a vested interest in the lands to be served by the water and must have a specific plan to put the water to beneficial use.
The work group has identified the following risks from speculators: investors’ obtaining a monopoly over a local water market; large-scale, permanent dry-up of agricultural lands; less water availability for other water users; and violation of Colorado’s values to see a vital public resource traded as a commodity.
Potential risks and solutions
The potential solutions to these risks are many, according to a draft document. The work group is exploring several of these, including creating a process to determine the intent of the purchaser; taxing profits from the sale of water rights at varying rates to encourage beneficial use and to discourage profiteering; imposing time limits on turnover of ownership to discourage short-term “flipping”; encouraging local governments to police investments through their 1041 powers; and creating a public-review process for water transfers that exceed some threshold.
The group has not coalesced around any of these potential solutions, but state officials said they are zeroing in on using the water court process to evaluate transfers as a way of spotting speculation.
The work group is supposed to submit a report, along with any recommendations from members, to state officials by August. But so far, the group has had a difficult time making sense of the thorny questions raised by these issues. Even trying to define what speculation is (and isn’t) and who is considered a speculator has been a struggle.
“It’s one thing to point at something and say, ‘Oh, that’s probably speculative.’ Another to actually put the legal definition on it,” said Alex Funk, agricultural water-resources specialist with the Colorado Water Conservation Board. Funk is also a member of the work group.
Discussions so far about reining in speculation have focused on the intent of the buyer. Can the state determine whether someone who is purchasing water rights intends to grow hay or build a residential subdivision? Or are they solely focused on the water rights’ future value? And how do you tell the difference?
“Do we want to protect against certain types of intent?” Rein said. “And then how do we determine that?”
Predetermining a water-right purchaser’s intent could prove to be a difficult task, akin to stopping a crime before it’s actually committed. Funk invoked the 2002 film “Minority Report,” in which a police detective (played by Tom Cruise), with the help of three psychics, tracks down would-be murderers and arrests them before any gun goes off.
“There aren’t speculation police running the state and breaking up these investments, right?” Funk said.
Financial water speculation
A draft report by the work group attempts to define two different types of speculation.
The first is traditional water speculation, which involves obtaining a water right without any plan or intent to put that water to beneficial use. The intent is to obtain a desirable priority date and then sell the water right to others who have a beneficial use.
This type of speculation has been addressed before in Colorado water law in what is known as the High Plains case. In 2005, the Colorado Supreme Court determined that a water-investment company was speculating because its plan for using the water was too expansive and nebulous, and the plan did not identify either the structures through which the water would be diverted or the specific locations where the water would be used.
The second type of speculation — and, because of WAM’s dealings in the Grand Valley, the one on which the work group is more focused — is financial water speculation. The work group defines this as the purchase and use of water rights with the primary purpose of profiting from increased value of the water in a short period of time. Financial water speculation may run counter to Colorado’s prior-appropriation doctrine because the primary intent is profit rather than beneficial use.
The concerns over speculation tap into a deep-seated anxiety that is prevalent in Western farm towns: the transfer of water from agriculture to cities. There are real examples of agricultural water being sold to cities, sometimes derisively described as “buy and dry,” and some rural communities have suffered economically as a result.
In some ways, the work group’s discussion of how to prevent speculation is really a broader discussion of how to prevent water transfers away from agriculture. The group has identified the large-scale, permanent dry-up of agricultural lands as the No. 1 risk from speculators. Part of Funk’s job is to head up a program of “alternative transfer methods,” which allow cities to temporarily buy or lease water from agriculture, but without the severe economic impacts.
“I think the issue with speculation is that what on paper might seem a very sort of small, isolated issue, as soon as you start sort of unpacking it a little bit, it’s essentially all the problems that Western water and rural communities are facing in, like, one issue,” Funk said. “So, as soon as you start unraveling it, you start running into other forces at play that are really beyond the state’s control or any one individual producer’s control.”
Impacts to ag
The work group is walking a fine line to come up with ways to deter speculation while not harming traditional agriculture producers in the process. In a big-picture sense, irrigators may worry about the impact to their community and way of life if all their neighbors sell to hedge funds. But when it’s their turn to receive a check for their water rights, they don’t want regulators doing anything that would make the process harder or devalue the ranch they have put their lives into, including restricting whom they can sell to.
It’s an oft-repeated adage that a rancher’s land and water rights are their 401(k) or their child’s college fund, and some say any new rules aimed at speculators should not make it more difficult for traditional ag producers to cash out if and when they want.
So far, the investment firms active in western Colorado have continued to lease their land back to farmers, or farm it themselves.
Carlyle Currier, a rancher in Molina and president of the Colorado Farm Bureau, has a seat on the Colorado River Basin Roundtable and his family has ranched in the Grand Mesa area for more than a century. Currier said until the investors attempt to sell it off, they’re not doing anything illegal.
“If the government can tell (someone) they can’t buy a farm and farm it, well, then they could tell me that, too. And I don’t want them telling me that,” Currier said.
The speculation discussion is also set against the backdrop of a potential demand-management program, the feasibility of which the state is currently studying. A demand-management program would pay irrigators on a temporary, voluntary basis to fallow fields and leave more water in the river. This water would be sent to Lake Powell to fill a 500,000-acre-foot pool that could be used to help the upper-basin states avoid a protracted legal battle with states downstream on the Colorado River.
Some say the exploration of demand management — including pay-to-fallow pilot projects in the Grand Valley — could have opened the door for investors who want to take advantage of the program to make easy money. Where there are opportunities, there are opportunists.
“Here in Mesa County, we’ve been watching a Wall Street investment firm buying up agricultural properties all with pre-compact water rights,” Steve Aquafresca, Mesa County’s Colorado River District representative, said at a board meeting last month. “I think it could be safely said that these actions probably would not have occurred if the state were not discussing the possibility of a demand-management program and if one particular major irrigation-water provider was not showing some willingness to entertain a demand-management program.”
Suspicion of outsiders
For all the concern about water speculation, there’s scant proof that it’s happening on a large scale on the Western Slope. Even WAM is not speculating, according to the current definition, as long as they keep the land in agricultural production.
“It does seem like there’s a lot of speculation about speculation,” Feldman of investment firm Conscience Bay said.
Instead, he said, old-fashioned suspicion of outsiders is at the heart of the issue.
“There’s people that view us as outsiders and we are not from here,” he said. “We know that. We know that damn well. And that’s not news to us.”
And there’s some evidence that he’s right. The Colorado River District, which protects Western Slope water interests, is developing a policy statement about water speculation. A draft of the policy says the district “recognizes the importance of locally owned agricultural lands and waters” and will work “to protect our state’s water resources from out-of-state special interests.”
And although these ideas didn’t get much traction, the work group has also floated two more potential solutions targeting outsiders: restricting the ability of out-of-state entities to participate in Colorado water court proceedings and prohibiting out-of-state entities from holding water rights.
“Is speculation just another word for investment (but it has) a negative connotation to it because it’s somebody that’s not from here?” Feldman said. “OK, well, do you not want to have investment in rural Colorado? Is that what we’re after? That’s where it would go if you put up enough barriers and hoops.”
Feldman says he is not the enemy. His operation isn’t the mom-and-pop homestead ranch of the Old West. It’s the investor-owned, employee-operated, risk-taking ranch of the New West. Harts Basin Ranch is looking for innovative ways to adapt to water scarcity and is participating in a program with environmental group Trout Unlimited to study consumptive use and how agriculture can stay productive while using less water. The group receives funding from the Walton Family Foundation, which also funds KUNC’s Colorado River reporting.
Feldman sees the heated discussion about speculation as a symptom of how Western communities are choosing to grapple with increasing water scarcity under climate change. There are those who explore new ways of running an old business and there are those who want to protect the status quo.
“At its core you see a real friction or conflict between a group of people that’s trying to make water policy more flexible to adapt to a changing climate,” Feldman said, “and those that are trying to impose more rigidity and prevent any change from occurring.”
This story was part of a collaboration between KUNC in Colorado and Aspen Journalism. Aspen Journalism is a local, nonprofit and investigative news organization that covers water and river issues. KUNC’s Colorado River reporting project is supported by a grant from the Walton Family Foundation. KUNC is solely responsible for its editorial content.
Here’s the release from the Department of Interior:
Interagency effort will coordinate resources across the federal government to bring immediate relief to irrigators, Tribes, and western communities
The Biden-Harris administration today announced the formation of an Interagency Working Group to address worsening drought conditions in the West and support farmers, Tribes, and communities impacted by ongoing water shortages. The Working Group will be co-chaired by the Departments of the Interior and Agriculture to build upon existing resources to help coordinate across the federal government, working in partnership with state, local, and Tribal governments to address the needs of communities suffering from drought-related impacts. The White House released a readout from today’s National Climate Task Force Meeting announcing the new Working Group.
“Water is a sacred resource. This Interagency Working Group will deliver a much-needed proactive approach to providing drought assistance to U.S. communities, including efforts to build long-term resiliency to water shortages,” said Interior Secretary Deb Haaland. “We are committed to using every resource available to our bureaus to ensure that Tribes, irrigators and the adjoining communities receive adequate assistance and support.”
“In the United States, intense droughts threaten major economic drivers in rural communities such as agriculture and recreation, disrupts food systems and water supplies, endangers public health, jeopardizes the integrity of critical infrastructure, and exacerbates wildfires and floods. With our interagency Working Group, we will collaborate with Tribes, agricultural producers, landowners, and rural communities to build regional resilience to drought,” said Agriculture Secretary Tom Vilsack.
Water allocations are at historic lows, including in areas like the Klamath River Basin and the Colorado River Basin, creating an urgent need to minimize the impacts of the drought and develop a long-term plan to facilitate conservation and economic growth. The Working Group will work to identify immediate financial and technical assistance for impacted irrigators and Tribes. Development of longer-term measures to respond to climate change and build more resilient communities and protect the natural environment will also be a priority, including through President Biden’s proposed American Jobs Plan and through a recommitment to strengthening the National Drought Resilience Partnership (NDRP). Formed in 2013, the NDRP brings together multiple federal agencies to build long-term drought resilience, including developing innovative science-driven actions to address water supply challenges.
In 1973, Colorado broke new legal ground by establishing water rights solely for the protection of streams, fish and wildlife. Prior to that, water could be diverted only for things like farming, manufacturing and residential water use.
When the state moved to establish these environmental water rights, it was one of the first states in the American West to do so.
This year it will dramatically expand that ground-breaking effort as three new laws, passed in 2020, take effect. One involves the use of temporary water loans, a second adds protection for ranchers who divert water for cattle in stream segments where special environmental flows have been designated, removing an important obstacle to establishing new environmental flows, and a third creates a new tool for environmental flows once only available to cities and farmers.
Zane Kessler, director of public affairs for the Glenwood Springs-based Colorado River Water Conservation District, said the changes represent an important evolution in protecting environmental flows while balancing the needs of Colorado’s ranchers and cities with those of the environment.
“Good policy helps us evolve to meet changing needs and priorities over time,” Kessler said.
How the new laws work
The expanded temporary loan program authorizes emergency loans and allows loans of water for five years in three separate 10-year periods. Previously those same loans could be used only for three years in a single 10-year period.
This provides relief for several regions, including the Yampa River Basin, where an instream flow loan had been used to its fullest extent under the old law, even though drought has continued to harm the Yampa River. The new longer-running loan program will provide critical flows to the river.
The stock water law, though it doesn’t directly add water to streams, writes specific rancher protections into law, paving the way for more stream segments to be considered for the program.
And the third law, which advocates believe may have the most significant impact of the three, allows something known as an augmentation plan to incorporate environmental flows to help protect streams.
Advocates, such as the Colorado Water Trust, a nonprofit that spearheaded the new approach, say the tools can be used as templates across other river basins, where older water rights are already spoken for.
“In the long run, this could be more impactful,” said Kate Ryan, an attorney for the Colorado Water Trust.
Across Colorado nearly 40,000 miles of streams flow year-round and, as a result, have the potential to receive protection under the state’s Instream Flow Program. To date, the state has been able to establish environmental flows on nearly one-quarter of these, according to the Colorado Water Conservation Board, which manages the program. The CWCB is the only entity legally allowed to hold these environmental water rights in Colorado.
Who gets to choose
Anyone can go to the CWCB and ask that it protect a certain stream segment, but whether it’s a member of the public, the U.S. Forest Service, or The Nature Conservancy, the entity must be able to show that there is enough water in the stream to support a new water right. They must also show that, by decreeing an instream flow on that segment, the stream’s existing conditions will be preserved or, where possible, improved.
To accomplish this, extensive engineering and measurements must be conducted. Once an instream flow case has been researched and documented, the state must go to a special water court to have the right legally established. The court must also hear any challenges that other water rights holders on the stream segment may raise if they fear their own water rights could be harmed. The process often takes several years to complete.
Linda Bassi oversees the Instream Flow Program for the CWCB.
“It’s difficult because there are a lot of competing interests for water,” Bassi said. “On some streams, if the state wants to obtain a water right to protect flows there are a lot of other entities with water rights that may feel threatened. Or there are other entities that might have plans to develop a water right on that same segment who are made uneasy by the fact that we are coming in to establish one [an instream flow water right].”
In Colorado, water rights follow what’s known as the Prior Appropriation Doctrine, or “first in time, first in right.”
That means that a water right claimed in, say, 1894 will get its water before one claimed in 1905 during periods of drought, when there isn’t enough water for everyone who has a right to water in a given stream.
A late start
Because the state environmental program was established 100 years after water users had claimed much of the water in the states’ rivers, the water rights the state has managed to claim are very young, or junior to other more senior rights. That means that in drought years, when they are needed the most, these rights frequently go unfulfilled.
As a result, the state has changed its laws to allow older, senior water rights to be loaned or donated to the state. When it has enough money, the state can actually purchase older water rights that are more likely to receive water during dry years.
When proponents of the 2020 expansion went to lawmakers in 2019 to seek support for the new laws, they faced significant opposition from agricultural interests and cities. It took months of negotiations to craft the bills that finally won near unanimous bipartisan support at the Colorado State Capitol in 2020.
Getting to “yes”
The Colorado River District represents 15 Western Slope counties, many of which are heavily dependent on ranching. Historically any efforts to add new water rights for protecting streams have been viewed with deep skepticism.
This time was no different, Kessler said, but rural lawmakers were able to add enough protections into the new laws that the district’s board ultimately came out in support of the expansions.
One important measure gives the state engineer, Colorado’s top water regulator, the authority to oversee ranchers’ rights to their so-called stock water.
“During the winter months, ranchers with an irrigation water right [tied to] the summer season will often pull small amounts of water from the stream to keep their animals alive,” Kessler said. “With that [protection] in hand, we became a lot more malleable about how we approached the Instream Flow Program.”
A third part of the expansion, allowing the use of augmentation plans to restore environmental flows, could be among the most important part of the expansion effort, according to Ryan.
Farmers and cities have long used augmentation plans to repay the river when they divert out of turn. Now under the new law, this same tool can be used to help streams.
On the Front Range, for instance, the first environmental augmentation plan is getting ready to launch, with the cities of Fort Collins, Thornton and Greeley offering up water they own and already store under an existing augmentation plan. These “seed” flows will be added above various stretches on the Poudre River that dry up every year. As the new water flows downstream, it will restore habitat for fish and wildlife, and eventually travel down to a segment of the river that these cities are presently legally required to restore.
And though most environmental water deals require individual trips to water court, an expensive, time-consuming process, the new law allows existing augmentation plans to be used, which means proper quantities, times of diversion, and water right dates are already in place.
“There are those who believe that prior appropriation as it is practiced in Colorado is too rigid,” said Sean Chambers, Greeley’s water resources manager. “But I think this is an example of how we can use existing statues, tools and programs to meet the needs of municipalities, irrigators, agricultural interests, and the ecological and recreational needs of the river. And it’s a template that can be used in other [river] basins.”
How many more miles of streams could still be protected under the Instream Flow Program isn’t clear, according to Bassi, because the state’s priorities and its ability to buy water rights change.
But every year there are victories.
For decades, fish experts believed that a certain line of endangered cutthroat trout known as the San Juan lineage cutthroat had been extinct. But then they discovered them in a remote part of the San Juan River Basin and, last year, the CWCB was able to establish an instream flow on a critical stream segment there, helping ensure the endangered fish will survive.
“Priorities change, whether it’s [water for] a gold medal fishery, which helps the recreation industry, or to protect a declining species. We don’t have a set quota. We’re just trying to help these organizations achieve their goals through our program,” Bassi said.
Jerd Smith is editor of Fresh Water News. She can be reached at 720-398-6474, via email at email@example.com or @jerd_smith.
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.