By Heather Sackett
A bill aimed at expanding Colorado’s instream-flow loan program is moving through the state legislature and has support from agricultural water users, Front Range water providers and environmental organizations, in contrast to last year when the bill ran into opposition.
House Bill 1157, which last week passed the House in a unanimous 60-0 vote, would allow water-rights holders to temporarily loan their water to the Colorado Water Conservation Board’s instream-flow program with the goal of improving the natural environment.
The bill expands the number of years from three to five (but for no more than three consecutive years) that a loan may be exercised within a 10-year period. The loan also may be renewed for two additional 10-year periods, meaning that holders of agricultural water rights could theoretically loan their water for the benefit of the environment for 15 of 30 years.
Environmental groups, including The Nature Conservancy, Colorado Sierra Club and Conservation Colorado, support the legislation, and so do water-user organizations, including the Colorado Water Congress, Denver Water, Northern Water, and the Grand Valley Water Users Association.
HB 1157 is sponsored by Sen. Kerry Donovan (D-Vail) and District 26 Rep. Dylan Roberts (D-Avon), both of whom floated a similar bill last year. This year’s iteration gained the sponsorship of District 57 Rep. Perry Will (R-New Castle).
After the bill faltered in last year’s legislative session, Roberts knew he had some work to do before he brought it back to lawmakers, so he spent the summer and fall talking with the many interested parties about how to improve it.
“I represent Eagle and Routt counties, which are home to four major river systems, and I know how vital it is to the Roaring Fork Valley, the Eagle River Valley and the Yampa River Valley to have a really strong flowing river,” he said.
The Eagle, Colorado and Roaring Fork rivers flow through Eagle County, and the Yampa River flows through Routt County.
“Instream-flow loans allow people to loan the water back and help the river, while not losing their water rights,” Roberts said.
In the new bill, lawmakers added more protections for water-rights holders by increasing the window for people to appeal a loan. The legislation quadruples the comment period from 15 to 60 days so that those who feel they could be harmed by a loan of water have sufficient time to raise their concerns with the state engineer.
Instream flow program
Colorado’s instream-flow program gives the CWCB the ability to hold water rights specifically for preserving the natural environment “to a reasonable degree” by keeping water flowing in the river. Since 1973, the CWCB has appropriated instream-flow rights on nearly 1,700 stream segments, covering more than 9,700 stream miles.
Instream water rights are administered under Colorado’s prior appropriation system. And, given that none of the instream rights were in place before 1973, most of them are junior to senior agricultural water rights. Those rights, which can date to the 1860s in Colorado, have a higher priority under the “first in time, first in right” doctrine.
Senior ag rights divert significant amounts of water from the state’s rivers and streams and can even dry up some reaches in drought years. However, the state’s instream-flow program does allow owners of such senior water rights not to use their rights for irrigation and instead leave their irrigation water in the river, on a temporary basis, to bolster low flows. And the new legislation expands that option.
The temporary loan program — where water-rights owners offer, in exchange for payment, to contribute their water to one of these segments with an existing instream-flow right — has only been used seven times since its creation in 2003. In Division 5, temporary water loans have occurred on Deep Creek, the Fraser River and the Colorado River.
CWCB officials estimate an additional two to four loans under the program over the next few years.
In past deals, irrigators have been paid for the loan of their water by the state, Trout Unlimited or the Colorado Water Trust.
According to CWCB Stream and Lake Protection section chief Linda Bassi, the loan program can help boost streams in late summer when flows are low, temperatures are high and fish are stressed.
“It’s a really helpful tool for instream flows that fall short,” she said. “It’s always good to have more tools to help preserve the environment.”
River District support
The bill has garnered the support of the Glenwood Springs-based Colorado River Water Conservation District, which helped shape the revamped 2020 bill with its input. The River District board voted unanimously to support the measure, according to Zane Kessler, director of government relations.
“Rep. Roberts went above and beyond to make sure the bill addressed the River District’s needs and provides meaningful protections to our constituents on the West Slope and agricultural water users across the state,” Kessler said.
Also, the legislation requires the CWCB to give preference to loans of water stored in reservoirs, when available, over agricultural and other water rights diverted directly from rivers and streams. This provision was included at the request of the River District.
Kirsten Kurath, attorney for the Grand Valley Water Users Association, said lawmakers worked with the association over the past year to improve the bill from 2019.
“I think, in general, that the bill is much more protective now of other water-rights users on the stream,” Kurath said.
The bill is now under consideration by the state Senate.
Aspen Journalism collaborates with The Aspen Times and other Swift Communications newspapers on coverage of water and rivers. This story ran in the Feb. 29 issue of The Aspen Times and the March 1 edition of Aspen Journalism.
