Pitkin County water rights could boost Roaring Fork River
October 26, 2009
ASPEN – Pitkin County is poised to loan its water rights to boost flows in the Roaring Fork River – an unprecedented move made possible by state legislation adopted last year.
County commissioners are scheduled to take up an emergency ordinance Wednesday that would let the county enter into a revocable trust, to be administered by the Colorado Water Conservation Board (CWCB), and loan the agency water rights from various county properties to augment flows in the Roaring Fork.
Legislation adopted last year by Colorado lawmakers makes the deal possible. House Bill 1280 allows water-rights holders to loan water to the CWCB, the only entity in the state that may hold in-stream flow rights to protect the natural environment.
There is no “emergency” dictating commissioner action, according to County Attorney John Ely, but with the CWCB scheduled to take action on the proposed trust agreement on Nov. 16 in Denver, an emergency ordinance is the only way to complete county commissioner approval of the trust agreement before then. The county’s meeting scheduled in November has been altered because of the Thanksgiving holiday, making the CWCB’s schedule impossible to meet without the quick action, Ely said.
The county has various properties that include water rights, according to Ely. Most notable is the airport, which sits on formerly irrigated ranch lands served by the Stapleton Ditch.
“With runways and whatnot, we have all this water we don’t need,” Ely said. “It made more sense to get it back into the river than take it out. It just seems like the right thing to do.”
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Colorado water law is complex, but among its easier-to-understand tenets is the “use-it-or-lose-it” principle. A water-rights holder who fails to use the water to which they’re entitled can wind up forfeiting the right, Ely said.
The county couldn’t simply donate its water rights to the CWCB because they are a valuable asset purchased with taxpayer dollars, he said. The revocable trust will allow the county to loan water rights, and add or withdraw certain rights over time. Or, the trust can be revoked in its entirety.
In the case of the Stapleton Ditch water, diverted from Maroon Creek, the water will simply be left in the creek and allowed to flow into the Roaring Fork.
Various other properties, acquired by the county’s Open Space and Trails program, also hold water rights connected to various tributaries of the Roaring Fork River. They, too, would be eligible for inclusion in the trust, Ely said.
A 2002 drought, when flows in the upper Roaring Fork dropped precipitously by late summer, drove home the need to protect in-stream flows, Ely said. Between diversions to the Front Range and local diversions such as the Salvation Ditch, the Fork nearly ran dry as it flowed through Aspen.
“You could just about walk across the river without getting your feet wet,” Ely said. “It just doesn’t make sense to sit back and let the Roaring Fork dry out.”
The Salvation Ditch Co. was willing to forego some of its diversion to aid the river that year, but state water law in effect at the time hampered the ability to temporarily loan water for the protection of stream flows.
It’s only a matter of time before a “perfect storm” of drought and diversions threaten the Roaring Fork again, Ely said.
Pitkin County’s trust agreement was first presented to the CWCB last January; it has since been redrafted and has been accepted by the CWCB’s staff and legal counsel, according to Ely.
Still, Ely anticipates opposition when the CWCB meets next month. Though the Legislature has made the deal possible, putting water back into the river is “completely contrary to the established way of doing business,” he said. “Everything is set up to get water out of the river.”
Several local entities have filed comments with the CWCB expressing potential concerns with the arrangement, including the Basalt Water Conservancy District, Starwood Metropolitan District, Willow Creek Ditch, Herrick Ditch Co. and the Roaring Fork Land and Cattle Co.