Legislators tackle water issues with package of proposed bills

Healthy Rivers Campaign in full swing

In the coming months, the Colorado legislature will consider several bills intended to keep rivers healthy and flowing, by employing in-stream-flow water rights.

Supporters of the bills refer to them as a package called the Healthy Rivers Campaign. The campaign includes three separate bills, all of which will first be considered by the Colorado House of Representatives.
House Bill 08-1280, sponsored by Representative Randy Fisher (D-Fort Collins) and Senator Gail Schwartz (D-Gunnison), will create protections for water rights owners interested in preserving stream flows.
Another bill, House Bill 08-1241, sponsored by Representative Jack Pommer (D-Boulder) and Senator Dan Gibbs (D-Silverthorne), extends a tax incentive for water rights owners who preserve stream flows by not taking full advantage of their water rights.
The last bill has not been officially introduced, but will help fund the state’s protection of stream flows through a provision in the Colorado Water Conservation Board’s (CWCB) annual projects bill. The annual projects bill and the new provision are sponsored by Representative Kathleen Curry (D-Gunnison) and Senator Jim Isgar (D-Hesperus).
Each of the bills relies on the concept of in-stream flow water rights. The CWCB is the only agency that can hold in-stream flow water rights, which act by mandating a minimum flow of water through specific streams as a way to preserve the natural environment and the recreational benefits associated with healthy rivers.
According to High County Citizens’ Alliance (HCCA) water director Steve Glazer, the in stream flow program was created by the Colorado legislature in 1972 to protect minimum flows in cold water fisheries. “The pertinent language in the bill was to balance human activities with the need to protect the environment to a reasonable degree,” Glazer says of the CWCB’s statutory mission regarding the in stream flow program.
He says over the years there have been amendments that have both weakened and strengthened the concept. Glazer says the new bills are intended to enhance in stream flow protection across the state.
The CWCB projects bill sponsored by Curry is an annual bill that approves the CWCB’s funding of water projects around the state. Curry says the projects bill has a lot of different elements, but a provision is being added this year that will allocate $1 million to assist the CWCB in the acquisition of in stream flow water rights.
That provision has been subject of lengthy debate, Curry says, because it marks the first time the CWCB has authorized the use of funds for water rights acquisition. “They’ve had the authority (to purchase in stream flow rights) for a number of years, but no funds. This is a whole new concept,” Curry says. “We’ve had a lot of discussions to make sure the use of the funding would be to preserve environmental values in stream,” she added.
However, the funds aren’t just for acquisition, she says. One of the issues with the provision is the CWCB needs to prioritize which streams need protection, and the funding could be used to help make that distinction, Curry says. Funds could also be used to cover the legal costs associated with water rights acquisitions. “There’s a fairly long list of purposes to use the money for,” Curry says.
Representative Pommer’s bill is essentially an extension of a tax credit that was first offered in 2005, according to Upper Gunnison River Water Conservancy District (UGRWCD) attorney John McClow. He says the credit is offered to water rights holders who do not make full use of their water rights. That means while someone may have the right to use water for development or municipal purposes, they can earn the tax credit by leaving the water undeveloped, thus simulating the benefits of an in stream flow right.
Along similar lines, House Bill 1280 protects the value of undeveloped water rights. McClow says when water rights are currently sold or transferred, their value is based on the amount of historical consumptive use. Thus, if water rights holders leave their water undeveloped, the value of their water rights decreases because the water is not being used. Under this bill, McClow says, the value of water rights will not decrease as a result of leaving the water unused. In essence, this is done by leasing or lending the water to the CWCB as an in-stream flow protection.
Schwartz says the bill has other hurdles to overcome in legislative debates. One of the concerns is that people will use the protection as a way of holding water rights until their value actually increases, at which point they could sell the water rights and make a profit.
Another concern, Schwartz says, is the CWCB’s ability to administer the protection program. In order to call on an in stream flow water right, the CWCB must be able to account for how much water should actually be flowing, which is done through the use of stream flow gauges.
Glazer says there is a shortage of such gauges on many rivers and streams that need them. For instance, there are concerns that Ohio Creek has an unhealthy amount of water flowing through it, but Glazer says there are not enough gauges to accurately measure it.
Despite the potential legislative issues, the bills are being heavily supported by environmentalists and outdoor enthusiasts. The national conservation agency Environmental Defense released a report on Wednesday, January 30 called “Healthy Rivers, Healthy Economy,” which states the increased stream flows as a result of these bills would generate another $4.4 million in recreational spending in Colorado, and could create 340 more jobs in the fishing and boating industries.
“The concept that we can keep water in the streams and there can be an economic and recreational benefit is exciting,” Schwartz says.
UGRWCD manager Frank Kugel agrees. "It is in the best interest of all of us in the Gunnison Basin to protect and preserve our environment," Kugel says.
Locally, Glazer says, there are opportunities for additional in stream flow protection on Cochetopa Creek and the Slate River.
But while in stream flow rights protect the environment, Glazer says, they can have a burdensome effect on local water users. This summer the CWCB placed an in stream flow protection call on the Slate River, and upstream users were required to purchase additional “augmentation” water from the UGRWCD to meet their own needs.
Whether or not any of these bills comes to pass is an issue the Colorado legislature will decide in coming months. Curry says the projects bill is still being tweaked and re-worded so there will be fewer issues to change in debate.
Glazer says House Bill 1241 has been introduced, but has not been scheduled for a legislative session. House Bill 1280 will go to the House’s Agriculture, Livestock and Natural Resources Committee on Wednesday, February 20.