This is part two of a two-part series by General Manager, Ralph "Terry" Scanga. To read part one, click here.
Threats to Water Use
In terms of water supply the greatest threat for the future would be a loss or erosion through legislative or administrative action of the time-tested Colorado Doctrine of prior appropriation. Actions are underway to use the water plan as a framework to advocate instead for the use of policy to appropriate water. Using policy for water appropriation would give the administration and legislature a pathway or initiative to utilize legislation in lieu of the more deliberate Appropriation system that is designed to protect existing water rights from injury. This strongly suggests that the legislature and administration may attempt to act upon perceived crises to garner support to move future appropriations or changes of current water use through legislation instead of the water court system.
Already underway is a Demand Management Plan that will allow administrative policies to transfer water rights from agriculture through Deficit Irrigation or by utilizing an undefined process termed “Conserved Consumptive Use” to Lake Powell or to municipal use. In the Arkansas Basin most irrigation is already in a deficit so there is no water to be saved. Under Colorado’s pure form of prior appropriation, in low flow periods, water rights are curtailed automatically to force reductions in use. There is no need to use state policy to create conservation. The frightening part of these actions is that if successful the only way for water right owners to protect themselves from injury will be expensive court action. If legislation is successful in adopting the concept of “Conserved Consumptive Use” it is possible we will see lower flows in the Arkansas River due to a reduction in trans-mountain diversions. These diversions support all uses in the river such as the voluntary flow management program. Instead of water flowing to the Arkansas River some may flow down the Colorado River to Lake Powell for storage and eventual evaporation there under a plan called Demand Management.
In the Upper Arkansas Basin water quality has been addressed is various ways. The Arkansas River was polluted by mining runoff and is normally by natural geologic formations. Most of this pollution has been cleaned-up and today there are large sections of gold medal fishing. Studies conducted by the US Geological Survey have concluded that most of our ground water is of good quality. These are good things. But the threat to water quality from sediment runoff from burn areas in our forests are real. Due to the beetle infestations and decimation of the forest stands in the US Forest lands fire is more likely and has occurred. The after effects of fire is larger than normal storm runoff. This will and has already caused heavy sediment loading on our streams and the Arkansas River. The Upper Arkansas Water Conservancy District (UAWCD) and the Arkansas Basin Roundtable is working with the US Forest Service and local entities to address some of these areas. Locally, the UAWCD is working with the Forest Service on a pilot project to remove beetle killed forest stands and make it a commercially viable resource. If successful, this may be be part of the solution. In the lower part of the Upper Arkansas River Basin, in Eastern Fremont County, there is a geologic formation that contains selenium that contributes to contamination in this part of the Arkansas River. At this time simply identifying these areas is a challenge but is being worked on by the US Geological Survey. Most of this type contamination mostly affects the Lower Arkansas Basin. Delivery of good municipal drinking water supplies is being undertaken by the South Eastern Colorado Water Conservancy District with the construction of a pipeline from Pueblo Reservoir to the Lower Basin communities.
fBy Ken Baker - Board Consultant
The Colorado General Assembly for 2019 will soon draw to a close. In past legislative sessions, bills that did not receive CWC State Affairs Committee vote of approval may have been assigned to a committee for further discussion and review. In the present General Assembly such bills commonly were referred to a committee and approved, received Chamber vote, and eventually were sent to the Governor’s office.
The following are some bills of interest.
HB 19-1082: Ditch Bill - Concerning the Rights of a Water Right Easement Holder
This bill confirms the right of a ditch easement owner to clean and repair the ditch to a condition that the ditch will carry the water adjudicated to flow in the ditch. The bill was sponsored in response to a ditch owner’s complaint that a landowner whose land was subject to the easement tried to restrict the ditch owner from cleaning and repairing the ditch. The law now gives the ditch easement owner the right to repair, maintain, and improve the ditch with ditch lining and culvert.
Ditch owners in the Arkansas River Basin may find that the 1995 Amended Rules and Regulations ordered by the Water Court to comply with the 1948 Treaty Agreement between the State of Kansas and the State of Colorado may restrict ditch lining.
SB 19-186: Concerning the Expansion of Agricultural Chemical Management Plans to Protect Surface Water
Under current law, the commissioner of agriculture is responsible for the management of the use of agricultural chemicals to protect groundwater and the commissioner adopts rules establishing agricultural management plans for this purpose. This bill expands the scope of commissioner’s agricultural management plans to include the protection of state waters, which include surface and subsurface water. There should be an amendment in the Finance Committee. It would require consultation with a pesticide advisory committee.
HB 19-1279: Fire Fighters Foam Control Act- Prohibits Class B Foam
This bill has a lot of implications for water and waste water. There are some things in the language that need to be addressed. An amendment would include adding helicopter landing pads and other kinds of firefighting foam testing not currently in the bill.
Concerning the grant of immunity from liability for a landowner relative to the landowner’s failure to warn against a known dangerous condition on landowner’s land when the landowner has granted a person access for use of the land for recreational purposes without charging the person a fee. This bill was postponed indefinitely.
Concerning the Colorado Water Conservation Board’s authority to use water that a water right owner voluntarily loans to the Board for instream flow purposes. This bill was killed in committee.
Concerning a clarification of the authority of the Colorado Water Conservation Board to augment stream flows with acquired water rights that have been previously decreed for augmentation. This bill was killed in committee.
Concerning sports betting and, in connection therewith, submitting to the registered electors of the state of Colorado a ballot measure authorizing the collection of a tax on the net proceeds of sports betting through licensed casinos and directing the revenues generated through collection of the sports betting tax to specified public purposes, including the state water plan through creation of the water plan implementation cash fund. Since this is a referred measure, it needs only a simple majority in the House and the Senate, and then goes to the Secretary of State who places it as a voter ballot issue in the November election. If approved by the voters, it becomes law without the Governor’s signature.
Waters of the United States
Click the button below to read comments by Doug Kemper, Executive Director of the Colorado Water Congress. Mr. Kemper's letter concerns the proposed rule on the revised definition of "Waters of the United States".
Check out this recent article published in the Ark Valley Voice with comments by Manager Scanga. Special thanks to Henry John DeKam for reaching out to the Upper Ark and for providing important and relevant information to the community.