Potential for harm: Opponents of Senate Bill 23 express concern about upstream water users
May 8, 2014
Steamboat Springs — This is a two-part series, with the first part appearing in Thursday’s Steamboat Today.
Senate Bill 23, which recently passed the Colorado Legislature, aims to provide incentives for agricultural water users and irrigators on the Western Slope to make their operations more efficient, but some opposed the bill on the grounds that it has the potential to harm others' water rights.
The bill would allow water rights holders who implement efficiencies to transfer the savings to the Colorado Water Conservation Board for an instream flow, which is a beneficial use that keeps the water in the stream.
The first major objection of opponents of the bill is the potential for intervening water rights holders (those between the point of diversion and the historical return flow of the water right holder who wants to transfer) to be harmed through the process or face significant costs to ensure they are not.
First in time, First in right
The other, and perhaps more fundamental, concern opponents of Senate Bill 23 have raised is the potential harm to upstream water rights junior, or lesser in priority, of any transfer to the CWCB.
When water in a given stream isn't used, whether informally or after it has been considered abandoned, upstream water rights holders can use some of that water.
"Non-use of a senior right aids the junior," said Tom Sharp, a Steamboat attorney with expertise in water law.
With Senate Bill 23, any transfer to the CWCB for instream flow use will carry the same date of the original water right, creating the potential for some senior instream water rights that would have priority over upstream junior water rights.
"If there's no call for water for instream flow use, nothing's going to prevent them from diverting," Division 6 engineer Erin Light said about upstream junior rights using water that's either not being used or has been abandoned.
However, in the event that there is a call on the stream, a junior rights holder might have to watch water flow by to satisfy a CWCB instream use. A senior right issues a call to ensure the full, decreed amount of water is delivered.
The CWCB is the only entity that can hold a right for an instream use.
The odds of the CWCB calling water for its own instream use are very low, Light said. To issue a call for an instream use, the CWCB would have to have an instream gauge between the point of diversion and the historical return flow for the right that made the transfer.
The CWCB has many instream use rights but "only a spattering a gauges in comparison," Light said.
Where an issue could arise is when a downstream senior right makes a call.
When a senior rights holder calls for their full, decreed amount, a stream comes under administration and a water commissioner adjusts upstream headgates to ensure the correct amount of water is getting to the user that issued the call.
A junior water right upstream of a senior CWCB instream use would have its headgate adjusted to the amount that's been decreed for it, and the water that otherwise might be unused or unapportioned would flow by.
"Why can't they use that water that they have a decree for?" Chris Treese, of the Colorado River Water Conservation District, said about junior rights that have a decreed beneficial use, such as irrigation.
In a document responding to the Colorado River Water Conservation District's objections, The Nature Conservancy states that Senate Bill 23 does not deny upstream junior water rights the ability to take advantage of unused or unappropriated water in the stream as the bill doesn't create any new legally available water.
Rather, the document states, the bill allows a rights holder to change the beneficial use of the right, leaving the condition of the stream the same as when the upstream junior encountered it.
Senate Bill 23 does not change how water is appropriated in the state nor does it change how upstream juniors benefit from unused or unapportioned water, but it does create a new avenue for senior rights to change the use of water that might otherwise be unused or become unapportioned and potentially get that water back at some point in the future.
"That was probably at the core of what we discussed in a lot of ways," Colorado Water Congress Executive Director Doug Kemper said. "Theoretically, the river remains the same below the point of historical return flows. The concern was really the upstream junior that normally" would have increased his or her diversion.
"It keeps upstream water rights from benefiting from downstream system improvements," he said.
"I'm not sure this whole concept is done yet," Kemper said. "It'll likely get scrutiny for next decade by water users in general. We're all going to watching this very carefully."
Kemper said the number of cases that will go through the application process set out in Senate Bill 23 is thought to be few.
First, he said, it starts with the concept of what streams or segment of a stream is right for the program, and there's the cost of whatever efficiency measures are installed.
"Then you got to go through as an applicant," Kemper said.
Early applicants could face 20 to 30 objectors and a multi-year water court process, he said, not counting the CWCB process that will be considering all the same issues. The application also will be evaluated by the Division Engineer's office.
"We got fairly comfortable" with the bill and the process, Kemper said. "Protecting existing water rights is a big deal."
"Ideally, the neighbor of the applicant will work with his neighbors and try to ensure the neighbor understands and has confidence in the plan to ensure nobody is harmed," Treese said.