Sure, Colorado is in a historic drought, and sure, agriculture uses roughly 85 percent of the state’s water.
It seems obvious, then, that making agriculture more efficient is a surefire way to preserve Colorado’s dwindling water supply. And yet, state water law often encourages farmers and ranchers to use as much water as they legally can, just to keep their water rights intact.
This summer, Democratic state Sen. Gail Schwartz of Snowmass Village plans to draft legislation that will remove the usage incentive from the law. Her bill would allow Western Slope irrigators who adopt more efficient watering systems to get credit for the water they save.
Schwartz is chairing the Water Resources Review Committee, a state body made up of lawmakers who meet every summer to draft legislation on water issues. Several Roaring Fork Valley water lawyers, ranchers and activists also participate.
The group will hold eight meetings throughout the summer, beginning July 17 in Gunnison, and Schwartz said she plans to reintroduce an irrigation efficiency measure that was stripped from a bill she carried, partly because of opposition from Front Range water interests, during the 2013 legislative session.
When an irrigator makes improvements to their water delivery system by replacing flood irrigation with sprinkler irrigation, improving a head gate or piping a ditch, for instance, they wind up diverting less water from a river, Schwartz explained.
Under Colorado’s “use it or lose it” water law, an irrigator who isn’t diverting the maximum amount of water that their right allows is at risk of losing some of it when they go to court to change its use or sell it.
In court, judges examine a water right owner’s “historic consumptive use,” the amount that’s put to work irrigating crops. If that historic use is less than what a water right allows, a judge can strip the unused water from its owner and put it up for sale.
People sometimes go to extraordinary lengths to avoid this fate: Bill Fales of Cold Mountain Ranch, south of Carbondale, said some ranchers in Colorado install sprinkler systems but leave their flood irrigation systems in place as well, to allow for the possibility of boosting their water use on short notice to preserve their rights.
“They put in systems so that they can flood irrigate underneath their sprinklers,” Fales said.
To avoid that kind of excess, Schwartz’s proposal would allow an irrigator to legally protect water that’s left in the stream after irrigation improvements are completed, so that their “historic consumptive use” isn’t reduced.
The extra water could be left in the river to protect ecosystems, or it could be put to another non-consumptive use downstream.
“How do we support investment in some new irrigation practices, and then give that farmer or rancher the guarantee that if they will divert less, they won’t lose some historic use?” Schwartz asked.
A good option, except for one thing
Tai Jacober, who along with his two brothers and his parents operates Carbondale-based Crystal River Meats, said he already has helped install efficient sprinkler systems on seven of the ranches where his company has leased land in the Roaring Fork Valley.
He’s done so even though it could put water rights at risk because it made good business sense, he said.
“To be inefficient is stupid for the world and it’s stupid for production, so you just make [efficiency improvements] anyway,” Jacober said.
Since he and his brothers installed a center-pivot sprinkler system on the Flying Dog Ranch, Jacober said, “[It] uses a tenth of what it used to when it was flood irrigated. If there was a program to voluntarily improve the rivers, and they knew that their water rights were secure, I’m sure they would participate,” he said of the Flying Dog Ranch owners.
Still, sprinkler irrigation isn’t an environmental slam-dunk: It recharges the groundwater aquifer less than flood irrigation does, and uses far more electricity.
“When you switch, you put a high carbon footprint down, because sprinklers take a lot of energy,” said Fales, who still flood irrigates most of his fields. “I think one of the beauties of these high-mountain ranches is that they don’t have a huge carbon footprint.”
A backdrop of creative solutions
Schwartz’s efforts this summer are part of a statewide movement to stretch the usefulness of agricultural water without taking farms and ranches out of production entirely.
Other ideas to accomplish that goal include a water-leasing program overseen by the Colorado Water Trust, which the city of Aspen recently used to keep water in the Roaring Fork River that it typically diverts into the Wheeler irrigation ditch. Rotational land-fallowing efforts and land conservation programs are other concepts now being explored statewide.
“We’ve made pretty decent strides in municipal water conservation, but in agricultural efficiency we are way behind the eight ball,” said Ken Neubecker, executive director of the nonprofit Western Rivers Institute. “Ag is where we ought to be focusing our efforts.”
Schwartz did have some success on the conservation front during the 2013 legislative session, winning passage of a measure that protects the water rights of landowners who enroll in state or federal land conservation programs. The provision could be used during drought years to allow farmers willing to fallow some land to leave part of their irrigation water in the river.
The current proposal to encourage irrigation efficiency does face several obstacles, however. Last spring, water interests on the Front Range opposed the rule change in part because they feared that irrigators on the Western Slope could use it to lock up water that would otherwise be available for purchase.
“Current law only allows you to leave enough water in the river to protect the ecosystem ‘to a reasonable degree,’” said Basalt-based water attorney Ken Ransford. Given the fuzzy nature of that standard, “The concern was that people on the West Slope could use the law to ‘over-protect’ the river. I think that was overblown,” he said.
Some ranchers, too, worry that establishing a private right to keep water in the stream could lead to far more disputes with neighbors over water rights.
Under current law, only the Colorado Water Conservation Board — a state agency — can hold an instream-flow water right.
“Establishing private, instream rights opens up a whole can of worms,” Fales said. “If someone is telling you that you can’t take water from the river because it belongs to them, that’s going to cause a lot of disagreements between individuals, aside from the disagreements with the state that happen now.”
Another concern of farmers and ranchers is that changes in irrigation techniques could affect the amount and timing of water re-entering the river upstream from them, which could change their own irrigation plans.
“One option we’ve considered is that if you’re going to change the timing and amount that you divert, you would have to have some kind of augmentation water to replace that for downstream users,” Schwartz said.
Despite the obstacles, Schwartz said she aims to have a revised bill completed by fall, so that it can be introduced during the legislative session that starts in January 2014.