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Colorado General Assembly Again Fails to Pass Flex Water Bill

On March 5, 2015, the Colorado Senate Committee on Agriculture, Natural Resources & Energy indefinitely postponed HB 1038 without objections, preventing any further progress in the legislative process.

HB 1038, known as the Flex Water Bill, would have established a 10-year proof-of-concept for flexible water markets.  In the 10-year life to the bill, irrigators who conserved water without permanent dry-up of their lands would have been allowed to apply for a change-of-use permit for up to 50% of their water to any beneficial use without designating a particular beneficial use.  This would have streamlined the process for irrigators to market their conserved water.

A similar bill last year faced concerns that it would encourage speculation and that it was another road to “buy-and-dry.”  This year’s bill would have excluded flex use from the anti-speculation doctrine, included a statement that the legislature intended for the bill to “promote the use of alternative transfer methods that encourage and support continuation of irrigated agriculture,” and limited the number of decrees that could be issued to 10 per water division per year.

Among the bill’s opposition was the Lower Arkansas Valley Water Conservancy District, who was not convinced that the legislature had sufficiently dealt with the issue of potential speculation and further “buy-and-dry.”  The district is working with the Arkansas Valley Super Ditch on 10-year pilot project to lease water to cities. The Pueblo Chieftain editorial board called the bill “ill-conceived,” characterized it as a “backdoor to buy and dry,” and celebrated its defeat as “worthy.”

Written by Marta L. Weismann