Colorado considers a robust package of water bills this session

In response to 2013’s drought, floods, and contention over water rights with the federal government, the Colorado state legislature has introduced a slew of new bills designed to prepare the state for similar troubles in the future.

Tensions have boiled up between Colorado ski areas and the U.S. Forest Service, which holds that ski area water rights belong to the federal government, since those ski areas are on federal land. The National Ski Areas Association won a suit against the Forest Service in December 2012, and now the state of Colorado itself is becoming involved.

HB 1028 would label any water right obtained by the federal government as a result of making the conveyance of that water right a condition for a permit to enter or use Federal land as “speculative” (speculation in water rights is prohibited under Colorado law) and cause it to revert back to the original owner. In other words, the state of Colorado is declaring it illegal for the federal government to make the forced transfer of water rights a condition of using federal land. Since ski areas use federal land, this bill provides them some legal protection.

Until the epic floods of September, over 90 per cent of Colorado was in a state of drought. Though the rains washed away this problem temporarily, state legislators still saw fit to enact legislation to mitigate the harm from future dry spells.

SB 17 would limit the replacement of irrigated farmland with lawns. The bill stipulates that no proposed change in use of water from agricultural irrigation to municipal or domestic purposes will be approved unless lawns are limited to 15% or less of total lot area. The bill was sent in an amended form to the Committee of the Whole on February 6th. If passed, it will become effective January 1, 2014.

HB 1026 would allow for the transfer of water rights even when the new use of the water is unspecified or unknown. Water court will not be involved unless there is an appeal. This increased flexibility will increase the fluidity of water markets and likely increase the total number of transactions. The bill passed the House on February 3, and was introduced to the Senate on February 5.

In practice, under HB 1026 a farmer’s consumptive use would be quantified; then the farmer would be allowed to move any unused portion of the consumptive use off the fields and market it.  The bill is supported by water interests in the South Platte Basin.   The basin encompasses the northern part of the Front Range and includes the Cities of Boulder, Fort Collins, Longmont and Greeley—and is expected to generated 2/3 of the state’s increase in municipal water demand by 2030.

The most vocal opposition to the bill comes from the Lower Arkansas Water Conservancy District, under the argument that it would lead to speculation and potential take water off farms 80% of the time.  The district’s attorney has recommended changes to the bill that would limit how often water could be removed from fields. The editorial board of the Pueblo Chieftan has also voiced opposition arguing that “it would obliterate the anti-speculation doctrine, which has been key in stopping past attempted water grabs in the Arkansas Valley.”

SB 23 tries to eliminate “use it or lose it” protocols that disincentivize increasing agricultural water use efficiency. The bill would allow users to “loan” water rights for the saved water to the state. The bill was introduced January 8, and awaits further action.

In September, heavy rain created catastrophic flooding across the state, prompting Governor Hickenlooper to declare 14 counties in a state of disaster emergency. In addition to the human cost the floods imposed, there were also significant damages to water infrastructure around the state. In response, the state legislature has proposed two bills that provide funding for infrastructure repair and lower legal costs for users to rebuild.

HB 1002 proposes appropriating $12 million for a grant program that would fund repairs for water infrastructure damaged by natural disaster. Priority would be given to those with the lowest financial ability to pay construction costs. The grant money would be available from time of passage until September 1, 2015. On February 5, the bill was referred from its original committee to the Appropriations Committee, with amendments.

HB 1005 addresses the flood’s damage to irrigation diversions, reducing legal hurdles for rebuilding such diversions if they were changed in such a way that the original diversion point no longer works. Under the new bill, water rights-holders would be allowed to relocate a ditch headgate without going to water court as long as doing so does not infringe on the water rights of others. The bill passed the House on January 30th and was introduced in the Senate on February 5.

SB 72 would address the flood’s impact on groundwater reserves. Existing law allows a junior water user to use water ahead of a senior water user (out-of-priority) by replacing the water consumed—a process known as “augmentation.” This bill would require the state engineer and water judges to treat all such out-of-priority groundwater depletions occurring on or before September 12, 2013 in Water Division 1, districts 1 through 7 and 64 as having been fully replaced.

Finally, SB 115 would create a revision to the process of drafting the state water plan. It would require the Colorado Water Conservation Board to hold a hearing on a draft state water plan within each basin roundtable, update the plan based on public comments, and present the draft plan to the water resources committee. The committee must vote on whether to introduce legislation approving the plan; the plan only becomes policy with the committee’s approval.

Written by Stratecon staff