HB 17-1291, 71st Gen. Assemb., 1st Reg. Sess. (Colo. 2017) – (allowing water users to store water in a place of storage not listed on the decree if the historical consumptive use of the water right has been quantified in a previous change).

House Bill 1291 (HB 1291) has also been called the “Another Reservoir on the Ditch” bill. Co-sponsored by House Representatives J. Arndt, J. Becker, and Senator D. Coram, the bill was introduced to the House on March 24, 2017, and signed into law by Governor Hickenlooper on June 5, 2017. Without any lobbyists or other organizations involved in its preparation, the bill was recognized by legislators and the public alike as a “common-sense” piece of legislation. The bill allows water users to store previously quantified water in an alternate place of storage not listed on their decree without going through water court in certain circumstances.

The benefits of HB 1291 are only available to water users who want to store their decreed water in alternate storage on the same ditch or diversion system (including in nontributary aquifers). The water that qualifies under the bill is limited. It must be attributable to a water right that: (i) has gone through a judicially approved change; (ii) has been decreed for storage; and (iii) has a quantified historical consumptive use. Additionally, the water must be diverted at a point of diversion already decreed for that water right—it cannot be imported from another division—and any applicable transit and ditch losses must be assessed against the water right.

This alternate place of storage is approved administratively, but if someone claims injury, the process returns to water court. The water user must notify the division engineer of the water right, the alternate place of storage, the decreed point of diversion, and the accounting of the storage in the alternative place of storage. The division engineer must then approve the change. Other than the changed place of storage, all other terms and conditions of the previous water right decree apply to the water right. If any person who is entitled to claim injury from the changed place of storage does so, the application will be brought in water court for a de novo hearing, thus preserving the rights of other users along the ditch or diversion system while otherwise streamlining the change process.

The bill grew from a recognition that applying for new storage rights on decreed water within the same ditch or diversion system is unnecessarily costly, rigid, and risky for water users. The ability to store water is essential for water users to control augmentation, recharge, and application. Before the bill’s passage, the law allowed water “to be stored only at a location specifically identified in a decree” and required people to make a change to their water right in water court. Yet many users could not independently develop storage because of the associated water court costs. Users who could not afford water court could either depend on auxiliary storage provided by other entities or not always fully utilize their decree. Users such as the Arkansas Groundwater Users Association (“AGUA”) depended on space in existing reservoirs for year-to-year storage, running the risk that their water would simply run downstream when flows exceed storage capacity.

During the legislative process, Chris Treese of the Colorado River Water Conservation District and others recognized HB 1291 as “that mythical, short, two-page, common-sense water bill that deserves support,” and accordingly, it was passed without any “No” votes. In the House Committee on Agriculture, Livestock, & Natural Resources hearing, witnesses supporting the bill represented the City of Fort Collins, AGUA, the Colorado River Water Conservation District (“CRWCD”), and various other organizations. The original bill text lacked the specific language that preserved the rights of injured users, limited the water to the same ditch or diversion system and water division, and specified that all other terms and conditions remained the same. Those shortcomings were addressed by amendment L.001 which clarified that the new or changed reservoir is along the same ditch or diversion system, preserved due process for water users claiming injury, and prevented the bill from being used for water imported from another division. Trout Unlimited, a conservation organization, supported the amendment and proposed additional language to assure that all other terms and conditions other than the change in storage continue to apply. The House adopted this language on Second Reading through amendment L.005.

In addition to making the lives of Colorado water users easier, HB 1291 also has some potential to help Colorado reach its water storage capacity goals as outlined in the Colorado Water Plan. The Water Plan aims to develop 400,000 acre-feet of storage by 2050. While the future storage that will be developed through HB 1291 will likely be relatively small, it will contribute to Colorado’s ongoing commitment to develop more water storage statewide. This additional storage in traditional reservoirs and nontributary aquifers will help water users and managers be more flexible and adaptable as the changing climate alters snowmelt regimes, flooding, and drought.

HB 1291 will have a niche impact specific to water users who change or add storage to their decree along the same ditch without injuring other users. The bill offers those users long-term, reliable water storage security that will enable them to fully utilize their decreed right through application, recharge, and augmentation—no longer must they allow water that lacks adequate storage to just run downstream. By streamlining the process of developing or changing storage opportunities while protecting other users from injury, HB 1291 is a small, simple bill with real benefits for Colorado’s water users.

Julia Bowman

Image: Sunset at Barr Lake, Colorado. Flickr user Steve Thompson, Creative Commons.