Water Law

Dolores River

In December, and in an effort to become a party to the case, the Colorado River and Southwestern Water Conservation Districts (SWCD) filed a statement of opposition against the Colorado Water Conservation Board’s (CWCB) recently established (last fall) minimum in-stream flow requirements on the lower Dolores River. In should be noted that there are several in-stream flows that already exist on the Dolores River that the SWCD does not oppose. They do, however, have specific concerns about one recent in-stream flow filing on the river.


Bennet Update and Ditch Irrigation Bill

According to a recent press release from his office, in mid-December Colorado Senator Michael Bennet helped pass a year-end bill that involved numerous Colorado priorities. These included financial support for the Emergency Watershed Protection (EWP) Program, as well as the Land and Water Conservation Fund (LWCF). The bill contains $157 million for the EWP Program, which aids people and organizations in watersheds following natural disasters like floods and wildfires. The LWCF was reauthorization for three years (to September 30, 2018). According to a Coyote Gulch aticle, in 2016 Bennet is working to pass Senate Bill 384, known as the ditch irrigation bill. The bill would allow mutual irrigation companies, which are nonprofits generally owned by local farmers, to lease water to local entities to earn revenue to pay for repairs on aging infrastructure. Under the current tax code these companies could lose their nonprofit status by profiting from water leasing. Bennet and U.S. Senator Cory Gardner, will have their names on the bill when it goes to the Senate in February. 


Here’s What’s Going on With Colorado Legislation…, by Emily Brumit, Water Policy Analyst, Colorado Water Congress

-  Richard Hamilton, a long-time proponent of the Public Trust Doctrine, has drafted a bill on Water Districts. The full title is: A Proposed New General Law Applicable to All Colorado Watersheds, Flood Control, and Greenway Districts. It’s been floated out to a number of legislators, but as of yet nobody has picked it up.

-  Representative KC Becker’s bill, which has been deemed an “accounting bill,” would require "covered entities" defined as a municipality, agency, utility including privately owned utilities, or any other publicly owned entities supplying retail water to customers having a total annual demand of 2000 acre feet or more per year to submit a completed and validated water loss audit report. Rules and performance standards would be set by the Colorado Water Conservation Board, who would contribute money to assist those covered entities to comply. 


Animas-La Plata Project Water Rights Settlement

In November, a settlement was reached by several local agencies with a stake in the Animas-La Plata Project water rights. In late 2013, the Southwestern Water Conservation District (SWCD) filed for conditional to absolute and continued diligence for the remaining portions of the water right held for development of the Animas-La Plata Project. Several agencies filed statements of opposition. Among them were: the Southern Ute Indian Tribe; Ute Mountain Ute Tribe; San Juan Water Commission; La Plata Water Conservancy District; and the Animas-La Plata Operation, Maintenance and Replacement (ALPOM&R) Association. Since then, these agencies have been hashing out the details of the administration of Lake Nighthorse storage rights, as well as the future of irrigation, municipal, and industrial uses along the Animas and La Plata rivers. The settlement agreement and proposed decree were entered with the court during a November hearing. The agreement was complex, but resulted in portions of the water right being transferred to the ALPOM&R Association for the Project as built, and SWCD retaining portions of the water rights for future uses as previously decreed including irrigation.


Prior Appropriation System Test Projects

Colorado water rights owners are testing the state's prior appropriation or "use it or lose it" rule that penalizes those who divert less than their full allotment from rivers, thereby opening a potential path to cut water use as shortages continue throughout the American West. For 139 years, state enforcers have said farmers, cities and ranchers who don't use all the water they are entitled to could have their rights curtailed. Critics have said that discourages conservation. A first deal in the works, made possible by a 2013 law, lets a ranch owner near Granby leave water in Willow Creek, a tributary of the Colorado River, without facing penalties. A second deal would leave more water in the Roaring Fork River, another Colorado River tributary, in Aspen. Colorado Farm Bureau (CFB) leaders said they're watching to make sure water left in rivers by those who don't exercise their senior rights stays available to next-in-priority irrigators. "We're definitely taking a wait-and-see approach," CFB president Don Shawcroft said.


Robbins Urges Proactive Water Protection Legislation on the Dolores

According to a recent Cortez Journal article, David Robbins, a prominent Colorado water attorney, concluded that a proposed national conservation area on the Lower Dolores River is a good way to protect local water rights against perceived federal threats. Robbins analyzed and provided in a 14-page legal review, of the various federal risks to local water rights on the Lower Dolores River including a National Conservation Area (NCA), national monument, wilderness area, wild and scenic river, and the Endangered Species Act, plus others. “The challenge for (local counties) is not if additional federal land management actions will be proposed and occur, but when and in what form,” Robbins wrote.


California Water Rights Exceed Supply

Among other serious water challenges, UC Davis researchers have found that in the last century, California has handed out rights to five times more surface water than their rivers produce even in a normal year. On some major river systems (i.e., the San Joaquin Valley), people have rights to nearly nine times more water than flows from the Sierra mountains.


New Water Rights Transfer

The non-profit Colorado Water Trust and the Colorado Water Conservation Board (CWCB) have unveiled a creative new way for agricultural water rights holders to be compensated for sharing their water to meet conservation goals. The two organizations have collaborated to restore late summer flows to a 5-mile stretch of the Little Cimarron River in the Gunnison River Basin by sharing an agricultural water right.


Landmark Legal Decision Protects Instream Flows

In April the Colorado Supreme Court rendered a landmark decision upholding the instream water right for the San Miguel River in Southwest Colorado. The court deemed that a senior water rights holder, Farmers Water Development Company, is unaffected by the State of Colorado’s instream water rights on the San Miguel river and affirms that state water rights are a legitimate and essential tool to protect Colorado’s fish and wildlife.


Federal 2015 Water-Related Issues and Legislation

The Congressional Research Service issued a new report in January highlighting what the 2015 114th Congress faces related to water resource development, management, and protection issues. Ongoing issues include competition over water, drought and flood responses and policies, competitiveness and efficiency of US harbors and waterways, and innovative and alternative financing approaches. To view the full report go to http://aquadoc.typepad.com/files/crs_report_wr_issues_114congress.pdf.


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