Pitkin County is taking unprecedented steps to keep more water flowing down the Roaring Fork River for environmental purposes.
In November, county voters approved a 0.1 percent sales tax worth $1 million a year to create a “healthy rivers and stream fund’ to “secure, create, and augment minimum stream flows.”
“I am not aware of any other Colorado county putting in place a tax similar to what Pitkin County has done,” said Linda Bassi, the chief of the Stream and Lake Protection division of the Colorado Water Conservation Board (CWCB).
And this week, the county is proposing to set up a revocable trust with the CWCB to hold some of the county’s water rights, which could eventually let perhaps another 30 cubic feet per second of water flow down the Roaring Fork River that otherwise would be diverted for irrigation and other uses.
“To my knowledge and to the knowledge of the people we have been working with at the CWCB, this type of action has not been taken before,” said John Ely, the Pitkin County attorney. “It will serve to augment instream flow rights that are held by the CWCB and it improves both the river ecology and recreational opportunities like fishing and boating.”
If the CWCB board blesses the concept of creating a “long term loan of water” through a “trust agreement,” the county would initially let about 4 cfs of water now running out of Maroon Creek and into the Stapleton Brothers irrigation ditch to instead flow into the Roaring Fork River.
Then, after a year, the county has the option to add another approximately 34 cfs of water to the trust managed by CWCB, and to the river. Those county water rights are now largely designated for irrigation on land held by the county’s open space program and the water is diverted from Brush Creek, Owl Creek, Woody Creek, Sopris Creek, the Crystal River and other tributaries of the Roaring Fork.
Under the trust, the CWCB would hold the county’s water rights and protect them from being challenged under Colorado water law, which has a strident “use or lose it” approach to water rights.
“We have not done one of these using a trust agreement before, so it is unusual,” said Bassi. “But one of the good things of our acquisition program is that it is very flexible and we can use just about any agreement that works for the water rights holder.”
The trust agreement would also be the first transaction at the CWCB to use the protections established in House Bill 1280, according to Amy Beatie, the executive director of the nonprofit Colorado Water Trust. That bill, passed last year and sponsored by Colorado state Sen. Gail Schwartz of Snowmass Village, strengthened the protection for water rights that are loaned or leased to the CWCB.
The change in the use of the county’s water rights from irrigation and other “beneficial uses” to “instream flow” rights would still need to be approved by a state water court, which can be a lengthy, complicated and expensive process. The trust agreement with the CWCB also needs to be approved by the Pitkin County commissioners.
The CWCB is the only entity in the state that can legally hold instream flow rights designed to “protect the natural environment to a reasonable degree.”
Typically, the instream flow rights held by the CWCB are junior water rights acquired after 1973. And when it comes to diversions during low flow years, those junior rights have to yield to senior water rights held by other parties.
The Stapleton Brothers Ditch water rights owned by the county date back to 1933, and the county also owns other senior water rights.
The CWCB also has a “minimum stream flow” program that determines the minimum amount of water that should be left in a river or stream to protect the environment. The agency sets minimum flows for different sections, or reaches, of rivers and streams. Sometimes the minimums are set differently in summer and winter.
The reach of the Roaring Fork River between the confluence of Maroon Creek and the Fryingpan River is 55 cfs from April 1 to Sept. 30 and 30 cfs from Oct. 1 to March 31. The minimum stream flow in Maroon Creek is 14 cfs year-round.
“Accepting this senior water right will potentially increase the frequency that the existing Instream Flow water rights on Maroon Creek and the Roaring Fork River will be fully satisfied, which in turn should increase the quality of the water-dependent natural environment within these two streams,” wrote Bassi, in a Jan. 20 memo to the CWCB board. “Furthermore, the additional flows in Maroon Creek and part of the Roaring Fork River are expected to improve the natural environment to a reasonable degree within the Instream Flow reaches.”
The CWCB board will consider the matter for the first time on Wednesday, Jan. 28 at a meeting in Denver, which starts a 120-day period for board review. Final approval could be granted by the board in March.
“I don’t anticipate that Front Range water users will be concerned about this,” Bassi said. “But it is possible that owners of water rights on the Roaring Fork River would be concerned about it. Whenever there is a change of use on the river, other water rights holders take a hard look to see if it will impact their water rights.”
On Thursday, Bassi said the CWCB had so far received one letter from someone in the local area asking questions about the proposal.
Ely worked to set up the innovative arrangement with the CWCB, with the help of the Colorado Water Trust, in response to two different circumstances the county encountered.
The first is that the county wants to manage some of its open space land in its natural state, which means not irrigating the land to grow hay. But if the county does not divert the water it owns, it could potentially weaken or lose its water rights.
The trust with the CWCB would let the county leave its water in the river while still enjoying the protection of a state agency specifically charged with holding water rights to the environmental benefit of the state’s rivers and streams.
“The CWCB is set up to do this very thing,” Ely said, adding that no additional legislation or regulations are needed to make the trust agreement possible.
Additionally, if the county wished to instead sell the water rights connected to its open space properties, it would be required to replace the water rights with water rights worth the same amount of money. And the only likely way to do that would be to buy water rights connected to other property, which would put the county back close to where it started. And any transaction would require the approval of county voters.
The second circumstance is the need to manage the water rights in the Stapleton Brothers Ditch that are connected with the land used for the Aspen-Pitkin County Airport. That water once irrigated several hundred acres of fields that are now under an expanding airport runway and taxiway.
Because the airport is operated as an “enterprise fund” governed by the state’s Taxpayers Bill of Rights, the county cannot give its water rights to the CWCB for instream flow purposes, but instead must sell or lease them. And the CWCB doesn’t have the money to purchase the water. The trust agreement allows the county to loan the water to CWCB, and to the river, and stay within the guidelines of an enterprise fund.
The terms of the trust also allow the county to ask that any or all of its water rights be released from the trust at any time. And it sets up a process where it is simple and easy to add more water rights to the trust, although changes to additional water rights would still need to be approved through water court.
Beatie of the Colorado Water Trust hopes other Colorado counties will follow Pitkin County’s lead when it comes to efforts to leave more water in the river.
“I’m really hoping that there are other counties that are excited about this,” she said. “Counties that have active open space programs should think about doing something similar.”
Ken Neubecker, the president of Colorado Trout Unlimited, also supported the trust agreement between the CWCB and Pitkin County.
“I do think it’s a good idea to have such a trust, whether it’s with the CWCB or the Colorado Water Trust,” Neubecker said. “We need to have financial vehicles where money can be raised for acquisition of in-stream flow water.”