Rippy’s stream-flow bill could help rivers in need | AspenTimes.com
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Rippy’s stream-flow bill could help rivers in need

Allyn Harvey
Aspen Times Staff Writer

A bill expected to clear the state House of Representatives today would allow ranchers and farmers to donate water to help keep rivers and streams from drying up completely.

State Rep. Greg Rippy’s in-stream flow bill is expected to clear the House with a unanimous vote.

Rippy, R-Glenwood Springs, introduced the legislation to address shortcomings in state water law that resulted in a significant portion of the upper Roaring Fork River going dry for a few weeks at the end of last summer.

If the bill becomes law, major water users will be able to loan all or a portion of their water to the Colorado Water Conservation Board, which would leave it in distressed streams.

After four years of drought, the Roaring Fork was flowing at such a low level by the end of the summer that it fell below the critical threshold of 20 cubic feet per second. The Salvation Ditch Co., which manges the ditch by the same name, has rights to 20 cfs. So all of the water flowing off Independence Pass was diverted into the ditch for irrigation uses on the gentleman ranches of McLain Flats and Woody Creek.

The Salvation Ditch Co. owners expressed a desire to alleviate the crisis, but were hampered by the use-it-or-lose-it spirit of state water law and an unyielding state engineer.

The only way for the ditch company to leave water in the Roaring Fork without the threat of permanently losing some of its water rights was to arrange a water loan.

Water loans, as allowed under a 1902 state law, typically occur between ranchers and farmers, allowing those with senior water rights to temporarily appropriate water to a junior user to keep crops from being lost. Once the loaned water is no longer needed, the right to use it reverts to the original owner.

The Salvation Ditch Co. and the city of Glenwood Springs did reach a deal at the end of last summer for a small amount of water to keep city playing fields in usable shape.

If the deal had been approved at the state level, the ditch company would have let the water it loaned to Glenwood Springs past its diversion gate to flow down the Roaring Fork through Aspen on its way to Glenwood Springs.

But Hal Simpson, state engineer for the Colorado Division of Water Resources, nixed the deal, saying it did not meet the requirements under state law for a water loan.

“I have not been presented with a reason for this loan,” Simpson wrote in an e-mail to Salvation Ditch Co. attorney Tom Kinney.

“No crops have been identified as in critical need of water by Glenwood Springs, and no emergency has been identified for the city,” the e-mail continued, “so I do not see a reason to approve or even consider it and have staff review it when they have many other emergency plans to work on.”

Without Simpson’s blessing, the Salvation Ditch Co. faced considerable risk if it let any of its allotment go, no matter how noble the cause, because other users could have made a case to have the “abandoned” water reallocated.

So, on and off over the course of two weeks, the Roaring Fork ran dry from the diversion point near Stillwater Drive at the east end of Aspen until its confluence with Castle Creek on the other side of town. Trout and other aquatic creatures were left stranded in stagnant, stand-alone pools that remained.

Rippy’s legislation will allow agricultural and mining interests to loan water directly to the Colorado Water Conservation Board, the state agency set up in the 1970s to oversee the minimum stream flow program.

A water loan would be allowed to run for as many as 120 days in any year the governor has declared a drought emergency.

“There would be no risk of abandonment,” Rippy said. “This bill makes sure that water can return to the water user after the loan is up.”

The bill does contain a provision so people with water rights who might be affected can contest the loan with the state engineer if they think it will have adverse consequences.

“If [the state engineer] finds no injury, he cannot disapprove the loan,” Rippy explained.

He admitted his bill is not a perfect solution. But he said it goes a long way in making it easier for willing parties to solve a local stream flow crisis, as with the Roaring Fork last summer, while still protecting their water rights.

“It helps,” admitted Salvation Ditch Co. attorney Kinney. “It’s another tool to accomplish the bolstering of minimum stream flows. It does not solve the problem – but if we had a year like last year we can try to do something about it.”

Kinney said Rippy’s bill contains several hurdles before a deal can be struck between water rights owners like his client and the Colorado Water Conservation Board.

One hurdle is the need for the governor to declare a drought emergency. Another is a requirement that extensive engineering and water flow studies be completed before a deal is struck. And a third is that the state engineer still has final approval.

Kinney said he would have preferred to see the law written so donations could be made just to bolster stream flows that are running low. Nevertheless, Rippy’s bill does make it possible to give up irrigation water in order to maintain stream flows.

“It’s a good new tool,” he said. “If it becomes law, it will be a good thing, but its not foolproof.”

If the bill, HB 1320, passes in the House on final reading today as expected, it will be sent to the state Senate for consideration. The Senate has already passed its own water bill, SB 85, that both Rippy and Kinney say is inferior.

Rippy said Gov. Bill Owens is backing his version. The bill also received backing yesterday from the Colorado Water Congress.

[Allyn Harvey’s e-mail address is aharvey@aspentimes.com]


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