In Colorado, no term inspires a vacuous, eye-glazing stare quite like “water law.”
To the average Coloradan, the voluminous, arcane and, at times, archaic laws that apply to the state’s water may seem largely inconsequential, even mystical.
But there is one facet of the state’s water law that many citizens have heard of: “Use it or lose it.”
Colorado water rights are known as “usufructuary” rights, meaning that a right holder can use water, though ownership of that water remains with the public.
The value of a water right is based on its “historical consumptive use,” and if a water user doesn’t use their full allotment, the value of their right decreases.
The “use it or lose it” system is meant to make efficient use of the state’s water, but critics argue that it instead encourages waste as right holders take more water than they need just to avoid devaluation of their water right.
In 2013, the Colorado Legislature struck a huge blow to “use it or lose it” with Senate Bill 13-019, which prohibits water judges from factoring decreases in use due to participation in specially approved conservation programs into historical consumptive use.
Only now have such conservation programs been completed and approved, and a Grand County landowner is the first water user to participate.
Since SB 13-019 passed in 2013, the Colorado Water Trust has been working to develop a program through which water users could use less water without being penalized, said Amy Beatie, Colorado Water Trust’s executive director.
“Nobody had set up a Senate Bill 19 program, and our reading of the statute was that a program needed to be established,” Beatie said.
Witt Caruthers partly owns and manages a parcel of land near Granby for a group of investors.
The parcel includes a water right for Willow Creek.
“Our desires were to one, preserve our water rights but also to contribute to the overall maintenance of the ecosystem thereby leaving water in the stream when it wasn’t needed,” Caruthers said.
Eventually, Caruthers connected with the Colorado Water Trust.
“Nobody had ever used (SB 13-019) before, and so we realized the tool would be suitable for Witt’s water rights,” Beatie said.
The law requires that programs must be approved by a designated entity, and the Colorado River District, which approved Caruthers’ program, has already set up an approval process for others who wish to participate in the trust’s program, said Jim Pokrandt with the district.
The district’s board approved the procedure at its last meeting, and an application form is now available on its website.
“We’re glad to be in the vanguard and helping the agricultural community protect their water rights when they want to lend the water rights to environmental purposes,” Pokrandt said.
The City of Aspen has also expressed interest in the program, Beatie said.
CWCB APPROVES CONSERVATION PROGRAM
Though the Colorado Water Trust’s program is the first to give Coloradans shelter under SB 13-019, the Colorado Water Conservation Board has also approved a pilot program for protection under the bill, said Ted Kowalski, CWCB section chief.
The temporary program, which aims to compensate water users for voluntarily reducing their consumptive use, is part of a basin-wide drought contingency plan developed to address falling water levels in lakes Mead and Powell.
In July 2014, Denver Water, the Southern Nevada Water Authority, the Central Arizona Project and the Metropolitan Water District of California each gave $2 million to the program, while the U.S. Bureau of Reclamation gave $3 million, Kowalski said.
Of the total $11 million, $2.75 million will be spent in the Upper Colorado River Basin.
In May of this year, CWCB approved the program as an official water conservation program under SB 13-019, thus shielding Colorado participants from “use it or lose it.”
“It’s the first time the CWCB or a state agency as far as I know has invoked that provision,” Kowalski said.
That same month, CWCB and the Upper Colorado River Commission solicited pre-proposals for the pilot, Kowalski said.
They received more than a dozen proposals, with about half of them from Colorado, Kowalski said. The CWCB and UCRC are currently reviewing the applications.
“We’re hopeful that we could do that in short order, hopefully within weeks so that we could actually implement them this irrigation season,” Kowalski said.
NO GUARANTEE FOR ENVIRONMENTAL OUTCOMES
SB 13-019 isn’t the first law to help Colorado users conserve water without penalty.
A 2003 law lets users lease in-stream flows to the Colorado Water Conservation Board for conservation purposes.
These in-stream flow leases are designated as a “beneficial use” and are protected from factoring into a water right’s consumptive use.
Kirk Klancke, president of the Colorado River Headwaters chapter of Trout Unlimited, was heavily involved in some of the first deals under the 2003 law.
Klancke welcomed the newest program.
“We say the river needs every drop it can get,” Klancke said. “These are all good things.”
But there is one key difference between the in-stream flow leases and conservation programs under SB 13-019.
While SB 13-019 protects conservation uses, there’s no way to guarantee that the water will stay in the river.
As part of usufructuary rights, if one user leaves water in the river, a next-priority user can take it out.
Both Beatie and Kowalski said their organizations are interested in exploring options for ensuring that water left in the river will have some positive environmental impacts.
“Certainly that’s something we will consider,” Kowalski said.
Factors like the location of a water right could influence the environmental outcomes of leaving water in the river, Kowalski said.
Despite that uncertainty, Beatie called SB 13-019 “by far the most flexible tool that has ever been created” for those who want to use their water for environmental purposes.
Beatie and Kowalski said they look forward to gauging public interest in the programs.
“It’s really exciting and interesting, and I think we’re really excited to learn from this program,” Kowalski said. “We’re excited to see what obstacles we run into, to see if there’s an interest in this type of program and also to see how it actually is implemented.”