Water issues flow in this year’s legislative stream
The Colorado Statesman
The 2013 legislative session has been the busiest in recent years on the issue of water, particularly on how the state can conserve in a time of drought.
The work for the 2013 legislators began last summer, with the annual interim water resources review committee. The group of 10 legislators traveled the state last summer and fall, hearing about water conservation and legal issues on water rights. The end result was a recommendation for eight measures for 2013: two joint resolutions and six bills. Three other proposed bills were not approved by the entire com-mittee, but members of the committee sponsored two of those bills anyway.
The group’s legislative agenda was its most aggressive since the 2002 decision by the General Assembly to make it an annual permanent interim committee.
Six bills and two resolutions came from the committee’s summer work, and two other bills that were not adopted by the committee got to the legislature anyway, introduced by committee members.
The bills were: House Bill 13-1013, restrictions on landowners in demand-ing water rights, and House Joint Resolution 13-1004, on the Forest Service attempt to demand water rights from ski areas.
A drought can make legislators do things that they haven’t been able to do in the past, and that may hold best for HB 1044, which would authorize the use of graywater. Legislators, including those on the interim water committee, have tried for several years to get a graywater statute into the books, without success. This year, however, the General Assembly is just one more vote away from making it part of the state’s conservation efforts.
Graywater is water that is collected from residential, commercial and industrial buildings from bathroom and laundry room sinks, bathtubs, showers and washing machines. It does not include water from toilets, kitchen sinks or dishwashers. Graywater would be used primarily for outdoor irrigation and flushing toilets, according to Dr. Larry Roesner of Colorado State University.
HB 1044 requires the state’s water quality control commission to set up minimum standards for the use of graywater, and only if local governments also allow its use. Sponsor Rep. Randy Fischer, D-Fort Collins, said that graywater is a significant tool for water conservation. It would only be allowed in new construction, not in existing structures, because of the prohibitive cost of retrofitting septic systems for its use. Graywater plumbing must be separate from a home’s standard plumbing to avoid contamination of drinking water. The bill was supported by the Colorado Water Congress, Denver and Colorado Springs water districts and the Colorado River District. HB 1044 was not one of the bills adopted by the interim water committee, although it is sponsored by Sen. Gail Schwartz, D-Snowmass Village, one of its members.
Perhaps the most significant bill on water rights was Senate Bill 13-074, which clarifies water court decrees issued prior to 1937; according to sponsors, that’s most of the decrees.
Prior to 1937, some decrees did not specify the amount of acreage that would be irrigated under a water right; SB 74 says that in a dispute, the court could rely on the historical acreage irrigated in the first 50 years after the decree was entered. Supporters claimed that farmers have counted on that water for generations, and that it has substantial value, including for estate planning purposes.
Opponents, including the Colorado Water Congress, claimed it might harm senior water rights and intends to solve a problem that doesn’t exist. It’s unusual for the CWC to oppose anything coming from the interim committee, according to attorney Steve Simms. He said that the water courts have faced virtually every possible scenario on water rights during the past 100 years, and in 95 percent of those cases, they can go back to the original intent of the decree and figure out how much acreage was to be irrigated. SB 74 says “if you cheat and get away with it, we’ll legitimize it as long as you can hide it long enough,” Simms said.
State Water Engineer Richard Wolfe said there are more than 16,000 water decrees. He said he could not estimate how many would be affected by SB 74 without reviewing each one individually. The bill was signed into law by Gov. John Hickenlooper on April 4.
The interim committee has had several more successes in their agenda this session, including several bills promoting water conservation.
SB 75 was signed into law by the governor on March 15. It prohibits reductions in the amount of water allocated when a user has undertaken conservation measures. Sponsors, including Sen. Greg Brophy, R-Wray, explained that farmers are implementing better irrigation systems and techniques for water use, but they should not have their water allocations reduced as a consequence, particularly in drought situations.
SB 19 is another one of the bills not supported by the interim committee but that got onto the legislative calendar anyway. The bill, in its final form, applies to three water districts on the western slope, and provides opportunities for conservation, according to Schwartz, its primary sponsor.
Some mountain water districts have voluntarily curtailed water use in order to maintain river flows, according to attorney Kristin Moseley, who represented the Eagle River Water and Sanitation District. SB 19 encourages voluntary curtailments without penalizing the water user long-term by reducing their water diversion rights, Moseley said.
SB 19 has passed the General Assembly and is awaiting signature from the governor.
Water bills weren’t limited to the interim committee; another eight measures have gone through the General Assembly this year to deal with irrigation and groundwater and water storage.
SB 41 also deals with water rights and conservation, and another state need: firefighting. State water law is basically “use it or lose it,” and it includes a variety of needs that are considered “beneficial use,” such as irrigation, dust suppression, recreation and domestic. However, water storage isn’t among the approved uses under state law, and that was verified in 2011 by the Colorado Supreme Court. The Court, in stating that storage is not a beneficial use, could have forced the state water engineer to empty reservoirs every year. SB 41 reverses the Supreme Court position to allow water storage as a beneficial use, and it also adds firefighting to that list.
The governor signed the bill into law on April 8.
There are two major water bills still moving through the process: HB 1248 and HB 1316.
HB 1248 is the legislature’s attempt to save water rights on agricultural land; it sets up a pilot program on fallowing agricultural land and letting that water be used for municipal purposes.
The bill is based upon concerns that Colorado could lose more than a half-million irrigated acres statewide and basins could lose up to 35 percent of their irrigated acreage, all by 2050. “If we do nothing, ‘buy and dry’ becomes the default for meeting 21st century water needs,” according to the bill’s sponsor, Rep. Fischer. “Buy and dry” refers to the practice of permanently selling off agricultural water rights for development purposes.
Under HB 1248, the Colorado Water Conservation Board would authorize up to three pilot programs that would allow for temporary leasing of agricultural water rights, for up to 10 years, for four river districts: the South Platte, the Arkansas, the Rio Grande and certain portions of the Colorado. It doesn’t solve long-term water needs, but according to attorney Peter Nichols, it would create a short-term supply for municipalities during times of drought. The bill is awaiting Senate action.
The last major bill is HB 1316, which passed the House Health, Insurance, and Environment Committee 6-5 on Thursday and ends an exemption for the largest oil and gas field in Colorado and increases groundwater testing. Currently 25 percent of all drilling activity and the most intense growth of development and applications for new drilling occurs in the Greater Wattenberg Area (GWA) in northern Colorado. This month, of the 28 spills that have been reported to the Oil and Gas Conservation Commission, 15 occurred in the GWA.
State regulations issued just a few months ago by the Colorado Oil and Gas Commission allow for exemptions on thorough water testing for oil and gas drills in the GWA. HB 1316 would remove that exemption and require the commission to set up uniform testing standards statewide.