Colorado Legislature Swimming in Proposed Water Bills

Lawmakers in Colorado are considering a number of water bills for the 2013 legislative session.  The proposed bills come in the midst of a nation-wide drought that has hit Colorado particularly hard, and are aimed at increasing water conservation efforts.  According to Sen. Ellen Roberts, R-Durango, a sponsor of one of the bills, “we need the ability to respond to the drought.”  As a result, some of the proposals mark a departure from the traditional Colorado water doctrine, which involves maximizing water use and promotes a “use it or lose it” policy that has been in operation for more than a century.

BACKGROUND

Colorado has been a prior appropriations state since before statehood and during its territory days.  The prior appropriations doctrine calls for a “first in time, first in line” approach to water rights, whereby senior appropriators take priority over junior appropriators.   In other words, a person can claim a water right by being the first to use the unclaimed water, and people maintain the right as long as they are continuously using the water.  In an 1882 decision, the Colorado Supreme Court explained that the aridity of the land and the importance of irrigated agriculture was the rationale for the prior appropriations doctrine.  This is a departure from the common law riparian doctrine, which holds that running water is the property of the public and private landowners lay claim to the waters on the shores and banks of their property.   Colorado’s prior appropriations doctrine reflects the complicated nature of western water issues and some have even argued it is the most intricate system of water laws in the nation.

PROPOSED LEGISLATION

Senate Bill 19: Promote Water Conservation

Section 1 of Senate Bill 19 states that under the current system, a water user has no incentive to reduce the amount of water diverted (or consumed) because the amount of water that can be diverted is “is limited to the amount of water that was historically consumed by the original type and place of use.”  That is, there is a fixed amount of water that can be diverted or consumed which is determined by historical use.  Further, under the present system, water conservation results in a reduction of consumptive water rights—the ability to remove water from the source for agriculture, drinking water, irrigation, commercial uses, and other uses which do not return the water back to the source—because of the lack of incentive to conserve.  In other words, water conservation actually penalizes water users under the current system because it reduces the consumptive rights of those that conserve.  Senate Bill 19 aims to correct this issue by incentivizing appropriators to conserve water and allowing the diversion of water for conservation purposes without reducing water rights.

Senate Bill 41: Protect Water Storage Long-Term Use

The purpose of Senate Bill 41 is to have a long-term water storage system for firefighting and drought mitigation by increasing the definition of ‘beneficial use’ to encompass the storage of water for firefighting.  Further, the bill states that a water right is not abandoned if water is placed in storage.  This is a reversal of Colorado Supreme Court holdings which held that beneficial use does not include the storage of water.  For example, in a 2011 decision, the Court held that in order to store water there must be a demonstration that absolute storage rights have been exhausted before conditional storage rights can be perfected.  In other words, an appropriator must show that a water right which has been placed to beneficial use is complete (absolute) before the possibility of being granted the ability to store water for a conditional purpose (firefighting or drought mitigating).  But under Senate Bill 41, there does not need to be a showing that all absolute water rights have been perfected before conditional water rights can be exercised in order to ensure there is adequate water storage for firefighting and drought mitigation.

Senate Bill 75: Promote Water Conservation of Designated Ground Water

The purpose of this bill is to protect users of groundwater that conserve their water from losing their rights.  It states that “once the state engineer issues a final permit for the withdrawal of designated groundwater . . . a reduction in the amount of water used pursuant to the permit due to the conservation of water is not grounds to reduce.”  In other words, groundwater users should not be penalized through a reduction in overall rights due to the conservation of water.

House Bill 1018: Beneficial Use Produced Water Dust Suppression

This bill gives the solid and hazardous waste commission jurisdiction to regulate the groundwater used by oil and gas companies to suppress dust in rural areas and on dirt roads.  The commission is directed to promulgate regulations that would protect state waters from pollution and the public from exposure to toxic materials.  The regulations should conform to the federal environmental protection agency’s (“EPA”) standards regarding radioactive material in water used for dust suppression and should not exceed the EPA’s allowed maximum concentration for such material.

House Bill 1044: Authorize Graywater Use

Graywater is defined under Section 1 of House Bill 1044 “as that portion of wastewater that, before being treated or combined with other wastewater, is collected . . . for the purpose of being put to beneficial uses authorized by the water quality control commission.”  Graywater is water collected from sources authorized by the water quality control commission (“commission”), such as from bathroom and laundry room sinks, bathtubs, showers, and laundry machines.  However, the bill specifies that wastewater from toilets, kitchen sinks, urinals, utility sinks, and dishwashers are not permissible types of graywater.  The rationale for the bill is that the utilization of graywater for authorized purposed will maximize water conservation efforts.  Furthermore, the bill seeks to clarify under what circumstances graywater can be used.  In addition, the bill gives counties and municipalities the discretion to authorize graywater use in compliance with the minimum statewide standards that will be determined by the commission.  It also provides counties and municipalities with absolute authority to enforce resolutions and ordinances in regards to graywater use.

House Bill 1130: Reapprove Interruptible Water Supply Agreements

Under this bill, the state engineer can reapprove the operation of an interruptible water supply agreement a total of three times, whereas before the state engineer was only permitted to do so once.  Interruptible water agreements allow for the “temporary change in the point of diversion, location of use, and type of use of an absolute water right without the need for . . . adjudication.”  The underlying purpose of House Bill 1130 is to broaden water sharing agreements between private users and public users, such as between farmers and cities

CONCLUSION

Some of the proposed water bills are quite controversial because they represent a departure from Colorado’s traditional water doctrine.  For example, under the current system if a water user does not use their water they are deemed to have abandoned them and the water courts can reduce their water rights.  Senate Bill 75 addresses this matter by encouraging the users of groundwater to conserve their water without risk of reduction.  Moreover, Senate Bill 41 is in response to a Colorado Supreme Court decision which held drought mitigation and firefighting are not proper justifications for water storage.  According to Sen. Roberts, “The idea of it is to push back on those court cases and say, no, you can store water for firefighting and drought mitigation,” in order to promote better planning for  future droughts.   Another bill that encourages conservation is House Bill 1044, sponsored by Rep. Randy Fischer, D-Fort Collins, which allows for the use of graywater.  Regardless of whether the expressed objective of the bill is water storage or more broadly, water conservation, one thing is clear, water issues are a hot topic in Colorado this year.  It is likely the current drought and the prospect of another wildfire season like 2012 has prompted the legislature to dive into water issues.  With the existence of drought conditions continuing in the foreseeable future, it is also probable that we will see more changes proposed to the traditional Colorado water doctrine.

Lauren Joseph is an Experiential Educator and has worked with corporate clients, at-risk youth and adults with co-occurring disorders in dynamic learning programs designed to facilitate positive change.  She also is an outdoor enthusiast and is excited to bring her passion for the environment to the Water Law Review.


Sources:

Marianne Goodland, Water Issues Expected to be Big in the 2013 Legislative Session, The Holyoke Enterprise (Jan. 30, 2013), http://www.holyokeenterprise.com/index.php?option=com_content&view=article&id=6643:water-issues-expected-to-be-big-in-the-2013-legislative-session&catid=34:local-news&Itemid=34.

Joe Hanel, Water Bills on Tap, The Durango Herald (Jan. 25, 2013), http://durangoherald.com/article/20130125/NEWS01/130129721/-1/s.

Justice Gregory J. Hobbs Jr., Colorado Water Law: An Historical Overview, 1 U. Denv. Water L. Rev. 1, (1997).

Lawrence J. MacDonnell, Five Principles that Define Colorado Water Law, 165 Colo. Law., (1997).

H.B. 1018, 69th Gen. Assemb., Reg. Sess. (Colo. 2013).

H.B. 1130, 69th Gen. Assemb., Reg. Sess. (Colo. 2013).

H.B. 1044, 69th Gen. Assemb., Reg. Sess. (Colo. 2013).

S.B. 19, 69th Gen. Assemb., Reg. Sess. (Colo. 2013).

S.B. 41, 69th Gen. Assemb. Reg. Sess. (Colo. 2013).

S.B. 75, 69th Gen. Assemb. Reg. Sess. (Colo. 2013).