Water bills abound at Capitol

By K.C. Mason
Journal-Advocate Capitol correspondent

Tuesday, February 5, 2008

DENVER — Water bills, including several focused specifically on usage of the South Platte River, are beginning to get the attention of Colorado lawmakers, as they end the first month of their fourth-month legislative session.

The House on Monday debated two bills sponsored by Rep. Mary Hodge, D-Brighton, in her attempt to get some relief to mostly hay and vegetable growers in Weld, Adams and Morgan counties whose wells have been shut down for lack of augmentation plans.

One bill passed; the other didn’t. Opponents had the same arguments on both — they upset Colorado’s 130-year-old doctrine of prior appropriation. The forbidden practice of “water speculation” even was mentioned a couple of times.

Hodge’s House Bill 1030, which forgives irrigators of depletions made before 1974 when the augmentation rules were put into place, won preliminary approval on a stand-up vote with more than the 33 votes required for final passage.

Her HB 1044, however, was declared lost in another stand-up vote, called a division. It would have allowed ditch companies and others to loan excess augmentation credits to other users on the same stream and in the same year without going to water court.

“The second one was harder to explain so it could not be as easily understood,” Hodge said. “The first was an issue of fairness. There was no requirement for augmentation prior to 1974, and it only takes away about 700 acre feet of water per year.”

Hodge said both measures grew out of last summer’s South Platte River task force, which Gov. Bill Ritter appointed after about 400 wells were curtailed.

Rep. Cory Gardner, R-Yuma, supported both bills, but Rep. Jerry Sonnenberg, R-Sterling, was among those who split their votes on the two bills.

“The first one was a small minnow in the pond and was consistent with what we have done when we exempted the gravel pits,” Sonnenberg said.

“But with the other bill, I worry about the transparency of what people are doing with their water,” he explained. “If we can trade those (excess augmentation credits), the people don’t know if they have been damaged until the damage is already done.

Boulder Democratic Reps. Alice Madden and Jack Pommer, and Rep. Frank McNulty, R-Highlands Ranch, led the charge against both measures. Sterling, Boulder and Highlands Ranch were among the objectors in allowing the wells to continue pumping.

Every ounce of water in the South Platte ought to be accounted for,” McNulty said. “Depletions that are caused by pumping ought to be augmented so that senior rights are not hurt.”

Pommer and Madden chastised the well owners for now following the law.

“Here we are doing something to protect that small group of people, who despite warnings starting in 1960s, have absolutely refused to follow the law and do the right thing,” Pommer said of HB 1030.

Said Madden: “This is helping people who for the last several years decided not to negotiate and decided not to change and not to work within the system. We shouldn’t be rewarding people who frankly haven’t been very responsible.”

Pommer also argued Hodge’s second bill “opens the door to speculation.”

“It’s a way to get water you don’t need, but you hang onto it,” Pommer said. “This bill does not provide people with adequate notice to go in and make a claim that these (credits) should not be leant out.”

Similar arguments are expected on pending Senate bills from District 1 Sen. Greg Brophy, R-Wray, and Sen. Brandon Shaffer, D-Longmont.

Brophy’s SB 53, scheduled for its first committee hearing on Thursday, would change the definition of “designated ground water,” which does not require augmentation, to include water that takes more than 100 years for depletions to affect the nearest surface water.

Shaffer’s SB 136, which has yet to be scheduled for a hearing, would give the state engineer’s office the ability to allow well users to pump out of priority during the non-irrigation season without required augmentation, if they could prove the water would be available to downstream users when needed.

Shaffer said he is looking at the bigger picture of how water courts operate.

“Water is a resource in our state than needs to be managed, and by definition that means we need to have flexibility in the way we apportion our resource resources,” Shaffer said. “The statutory scheme that we have right now does not provide for that flexibility. I think we have an unwieldy system that needs to be reformed. The water court system is not working in our state.”

Sen. Chris Romer, D-Denver, also has introduced a bill that would allow the use of cisterns or other catchment systems to collect and store rainwater from residential homes of up to 3,000 square feet of roof space. The captured water then could be used for household purposes, fire protection, watering livestock and irrigating up to one acre of lawns and gardens.

“This is my first water bill, so wish me luck,” Romer said. “Many in the rural community already are doing it, but need to do it legally. This is a good bill that will be friendly to the environment, and in the long term create appropriate water storage without building a lot of new projects.”

Sporting groups, recreationists and environmentalists have banded together to support a package of three bills that they say will help protect Colorado rivers by keeping more water in the streams.

House Bill 1280, sponsored by Rep. Randy Fischer, D-Fort Collins, and Sen. Gail Schwartz, D-Snowmass Village, would allow long-term loans of water rights to the Colorado Water Conservation Board for in-stream flow without risking abandonment of the right.

Other bills in the package that have not yet been introduced, would create a tax incentive for water-right owners who choose to leave their water in rivers and streams permanently; and create a $1 million fund within the CWCB to assist in acquiring more in-stream flow water rights.