New Colorado water law tells feds to butt (except maybe in bypass flows)
The wonky, wacky world of Colorado water
by Allen Best
State legislators in Colorado rarely vote unanimously, and when they do it’s usually in support of a pom-pom proclamation such as espousing eternal support for the Denver Broncos or some other feel-good cause.
The Colorado Water Rights Protection Act was approved unanimously this spring before being signed into law April 21 by Gov. John Hickenlooper. The unanimity, however, glosses over strong disagreements.
The Boulder-based law firm that drove the proposal needed three years to get it approved. Then, once it was passed, an environmental group that helped craft the law’s language declined to be interviewed, because it was, in the words of a spokeswoman for Conservation Colorado, “neutral” about what the law says.
Welcome to the wonky, sometimes wacky, world of Colorado water.
This new law is frequently described as a “message.” It tells the federal government that Colorado has sovereignty over all matters involving water appropriations.
The rub lies in water on federal lands. A majority of Colorado’s 14 million acre-feet of water originates on federal lands, which cover near 36 percent of the state’s land mass. Should the federal land agencies have just a little say say-so in how diversions affect ecosystem functions?
Bypass flows have caused the quiet argument. In some cases, the Forest Service requires small amounts of water remain in creeks and rivers when issuing special-use permits or rights of way for diversion infrastructure such as dams, ditches, and pipes. The Forest Service cites the need for resource protection. Bugs need water, and fish needs bugs. They also need water, too. Most creatures do.
Near Winter Park, bypass requirements govern diversions from Vasquez and St. Louis creeks by Denver Water. Another requirement mandates bypass flows from Strontia Springs Dam, on the South Platte River southwest of Denver. Still another involves a hydroelectric facility near Georgetown.
The authority, however, lies in contested territory. In 2004, a district court judge agreed with Trout Unlimited that the Forest Service not only has bypass flow authority but also responsibility in some cases to use that authority. A higher federal court took on the case, but ruled on procedural issues, not the substance of the case.
But environmental groups stood by quietly when the Forest Service in 2011 said that ski areas, as a condition of their permits to operate on federal land, had to transfer their water rights to the agency. The reasoning was that water is a critical component of ski area operations, such as for snowmaking. The agency wanted the water rights to be attached to the special-use permit.
That’s really no different than Colorado’s requirement of state school trust lands leased for agriculture. These are the lands—a section in each township—given by the federal government to Colorado at statehood, in 1876, to be managed for income to benefit public schools. There are now about three million acres. Water rights used in agriculture must be transferred to the state when the land is leased.
The ski industry loudly opposed the Forest Service requirement. If a ski area figures out how to make snow with less water, for example, why shouldn’t it be able to move the water elsewhere? Too, some water used at ski areas comes from elsewhere. Both Aspen and Vail, for example, use water that originates in rivers at their bases. Finally, late last year, the Forest Service threw in the towel.
The Forest Service also retreated from a directive declaring that the agency has control over groundwater underlying its lands.
The dividing line
Glenn Porzak, a Boulder-based water attorney who was behind the new law, is adamant that the federal government has no role in determining water allocations in Colorado. “The only way you own that water is if you go through (state) water court,” says Porzak, who has for decades represented many ski areas and other water agencies in the Vail-Summit County area.
Western Resource Advocates, a leading environmental organization, was unwilling to stand by the Forest Service in the tiff with ski areas. Rob Harris, the group’s senior staff attorney, says the Forest Service over-reached, likening it to “poking them in the eye a little bit.”
But the group stood firm that it would oppose any state water rights law that rejected bypass flow authority. “We view the legal question as being well settled,” says Harris, pointing to the 2004 decision by the federal district court. “Most people would be depressed if they went to their favorite tract of national forest and found that the creek was dry,” he adds.
Rep. KC Becker oversaw the compromise. A Democrat from Boulder, her district has key parties on both side of the issue as well as the Eldora, Loveland and Winter Park ski areas. It also includes Grand County. Along with Summit and Eagle counties, it bears the brunt of transmountain diversions from the Western Slope. The three counties said in March that they were ready to oppose the bill if it constricted their ability to impose conditions on diversions. Language favored by the state attorney general’s office would have potentially allowed water diverters to sue Grand County for “takings” of property, said the county’s water attorney, David Taussig.
Leaving water in creeks at certain times and situations was integral to Grand County’s support of Denver’s stepped-up diversions through the Moffat Tunnel to Gross Reservoir. The concept, supported by Denver, is that when water is diverted is equally important to how much. In hot, dry weather, added diversions could leave the Fraser River too shallow and warm for fish.
What does it accomplish?
Even in headwaters counties, some heralded the new law. Rick Sackbauer, who chairs the board of the Vail-based Eagle River Water and Sanitation District, called it a “great victory for water right holders in the Eagle River valley and throughout Colorado.”
Greg Walcher, former director of the state’s Department of Natural Resources under Gov. Bill Owens, said the law “signals the state attorney general, and state agencies, that they are not only cleared, but encouraged, to take legal action when Colorado water rights are threatened by federal overreach.”
The law’s one shortcoming, said Walcher in his op/ed in the Grand Junction Sentinel, was that it was “watered down” by the neutral language about bypass flows.
That neutrality is why Becker, the bill’s primary sponsor, thinks environmental groups should be happy with the law, too. Not all of them are, though.
“My guess is that no one on the D(emocrat) side wanted any daylight between them and the citizens of the state on this, no matter how they feel about it deep down,” said one knowledgeable individual, concerned about job security. “The feds are everyone’s favorite whipping boy on just about everything, and especially water.”
“All true,” said Chris Treese, legislative affairs director for the Colorado River Water Conservation District, when he was read these words.
Treese doubts Colorado’s message law will resolve anything. Tension between the state and the federal government over water will remain. “This will continue to be an issue and a question of perspective.”
The bigger issue is the sufficiency of flows for environmental purposes. Laws adopted in the early 1970s have resulted in water rights called instream flows for environmental protection. They serve the same purpose as the federal government’s bypass flows, argues Porzak, the attorney who works on behalf of ski area interests.
Others think far more must be done. In the dry summer of 2012, for example, the South Platte River was reduced to small puddles downstream from diversions for electrical production and farm ditches. The Yampa River through Steamboat Springs looked no better until an agreement was struck that July to return flows.
But linking arms with federal agencies to secure water is always going to be looked upon with suspicion in Colorado. If the Broncos are the state’s de facto religion, state administration under the doctrine of prior appropriation ranks close behind. Even the water that flows out of the Eisenhower Tunnel has an owner and a priority date adjudicated by a state court.
It’s why legislators took so many years to pass the law making it legal to put a coffee can under your back porch to collect dripping rain. The rain barrels were a matter of principle.
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