Ditch company works out deal to raise river
September 3, 2002
The Salvation Ditch Co. has worked out an arrangement to lease some of its water right to the city of Glenwood Springs, putting more water in the depleted Roaring Fork River through Aspen.
Although a century-old provision in Colorado water law allows the short-term lease, the ditch company?s water attorney expressed doubt last week that the state would administer the deal and make sure the water is delivered from Aspen to Glenwood Springs.
Alan Martellaro, the state?s division engineer in Glenwood Springs, agreed.
?The emergency loan statute is difficult to enforce without proof that it won?t cause injury to other water users,? he said. ?In general, we?ve denied loans of this nature.?
Nonetheless, Martellaro said he has forwarded the proposal to the state attorney general?s office and the state engineer for direction.
The city of Aspen approached the ditch company last month to ask what could be done to leave some water in the river, which has been reduced to barely a trickle in town, endangering the fishery. The company?s water rights allow it to divert virtually all of the water left in the drought-stricken Roaring Fork. The Salvation Ditch head gate is located east of Aspen.
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Simply allowing more water to flow down the river without leasing it to a downstream taker would do no good, officials concurred, since some other holder of a water right on the Roaring Fork could simply siphon the water right back out.
In the city of Glenwood Springs, the ditch company found a holder of water rights on the Roaring Fork that needs irrigation water and could use it immediately. The company was willing to let up to five cubic feet per second flow down the river instead of diverting it into the ditch, which carries water to agricultural users on McLain Flats and beyond.
?It?s not huge, but that?s all the excess water we have at this point,? said water attorney Tom Kinney.
The company has worked out a deal to sell Glenwood the water for $25 per acre-foot until the irrigation season ends in October and the ditch company is no longer diverting water. Glenwood could use it for outdoor watering and conserve more of its municipal water supply, including stored water it owns in Ruedi Reservoir.
The side benefit would be keeping trout alive in the stretch of the Roaring Fork through Aspen, where a few days of dry weather leave little more than exposed boulders and standing pools of water in the riverbed.
The old state law allows the arrangement and requires the state engineer?s office to enforce it, shepherding the water from the upstream seller to the downstream buyer, according to Kinney. The state?s recent policy, however, has been not to honor such leases, he said.
?This is a private right between private parties. Our position is that the statute is still valid, it has not been repealed ? the state needs to recognize the statute,? he said. ?The question is whether the state will honor the statute.?
The state has previously denied similar lease arrangements elsewhere this year, Kinney said. ?If the answer is ?no,? we?re running out of time in the irrigation season.?
Kinney is hoping for an answer this week.
The other option to lease the water to Glenwood Springs is through an administrative mechanism known as a Substitute Supply Plan. It gives the state engineer the discretion to administer a temporary exchange of water, while the statute mandates that the engineer do so, Kinney explained.
The administrative process is costly and time consuming, he said. The ditch company will probably cease diverting water from the Roaring Fork before anything could be accomplished, according to Kinney.
An emergency lease under the 1890s water law provision is ?our best shot at doing something quickly,? he said. ?If that is denied, I think, quite frankly, we?re out of time.?
[Janet Urquhart’s e-mail address is firstname.lastname@example.org]