State official stands in way of water deal
September 17, 2002
If a state official in Denver changes his mind, more fish trapped in shallow pools in the Roaring Fork River may live this fall. But if he doesn’t, both the Aspen section of the river and a 100-year-old state law might dry up.
Hal Simpson is the state engineer for the Colorado Division of Water Resources. Last week, he informed attorneys for the Salvation Ditch Co. via e-mail that he did not “see a reason to approve or even consider” a lease agreement that would put more water into the Roaring Fork River over the next six weeks.
If Aspen gets warm, dry weather, there may be times when the 5 cubic feet per second available from the Salvation Ditch could make the difference between a river that flows and one that doesn’t. And it is Simpson’s call as to whether the water is in the river or in the ditch.
Tom Kinney, the attorney for the Salvation Ditch Co., thinks that Simpson is flaunting a state law by his refusal to consider the matter.
“I think the state engineer is failing to abide by the statute,” said Kinney, with the law firm of Hill, Edwards, Edwards and Kinney in Carbondale. “The state engineer does not like this lease statute.”
Kinney argued that under state law, a water owner can enter into a lease agreement with a downstream water owner to loan them water “for the purpose of saving crops or using the water in a more economical manner.”
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And he said the city of Glenwood Springs now needs to borrow water to irrigate its browning playing fields and parks and to avoid using more expensive, treated municipal water for the task.
The loan of water meets the requirements of the state statute, Kinney said, and incidentally it would help the fish in the upper Roaring Fork on its way downvalley. But the state engineer’s office doesn’t see it that way.
“In general, we’ve denied loans of this nature,” Alan Martellaro, the division water engineer in Glenwood Springs, said earlier this month.
The Salvation Ditch Co. owns substantial senior water rights on the Roaring Fork and is currently diverting about 20 cfs of water into a ditch near Stillwater Drive east of Aspen just past the Aspen Club.
When the river drops to 20 cfs or below, as it has for more than two weeks this summer, the ditch runs but not the river.
The water in the ditch travels along the base of Smuggler and Red mountains, and then most of it flows into pastures and hayfields along McClain Flats and in Woody Creek. The water mostly goes to irrigate hay and alfalfa on gentleman ranches, which often claim substantial tax breaks for growing and harvesting hay.
From Aug. 17 until Aug. 20, and then again from from Aug. 25 to Sept. 8, the ditch company diverted all the available water from a low-flowing Roaring Fork River, leaving trout stranded in stagnant pools from the Aspen Club to the confluence with Castle Creek.
But in response to pleas from the city of Aspen to try to keep the river flowing, the ditch company has been trying to find a legal way to keep 5 cfs in the river, of which Glenwood Springs would use about 2.5 cfs to irrigate its fields.
But if the ditch company merely left the water in the river, it would expose itself to other water users who might say that if Salvation doesn’t need the water, then they surely do.
The state has set an environmental minimum stream flow of 32 cfs in the Roaring Fork, but the Colorado Water Conservation Board doesn’t have the water rights to enforce it.
Also, if the ditch company’s water was simply let alone to flow downstream, the 5 cfs would not be “shepherded” down the river with the backing of the state engineer’s office. That means water users between Aspen and Glenwood Springs could claim it.
But under state law dating back to 1902, two parties can enter into a “water lease agreement” that provides for the water, and the rights that control it, to be “loaned” downstream. The parties merely need to present the lease to a division water engineer, with proof that no other users will be injured, and the division engineer “shall recognize” the agreement.
But Martellaro, the division engineer in Glenwood Springs, didn’t recognize the recently created lease between Salvation and Glenwood Springs, and instead he passed the decision up to Simpson.
“The division engineer had the legal standing to recognize the lease, but he doesn’t have the authority from his boss to do that,” said Kinney.
According to Kinney, the state engineer’s office created a new process for water loans that takes at least two months. And, he said, Simpson is trying to discourage use of the water lease provision in the century-old law.
“This lease statute is the middle of an increasingly complex administrative scheme,” Kinney said. “It is a control issue.”
But Simpson may have other reasons than process to ignore the lease.
He wrote in an e-mail to attorneys for Salvation that “I have not been presented with a reason for this loan. No crops have been identified as in critical need of water by Glenwood Springs, and no emergency has been identified for the city, 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.”
But Kinney argues that irrigating grass on ballfields is legally no different than irrigating grass in a hayfield. “Irrigation is irrigation,” said Kinney.
There is a chance that Simpson could change his mind on the 5 cfs the Salvation Ditch Co. wants to loan Glenwood Springs.
“If you can provide me with a pressing reason for this loan, I may reconsider it,” Simpson said in his e-mail.
Simpson was not available to comment for this article.
According to Kinney, all Simpson would need to do is allow his division engineer to formally recognize the agreement between the two parties.
If that was done, and the water in the river dropped again, the 5 cfs of water could help connect the isolated pools in the river.
The other alternative, to sue Simpson for ignoring the law, would take too long, Kinney said.
“To fight this legally doesn’t make sense,” he said. “We would have to go to court. And practically speaking, we are a month away from the end of the irrigation system.”
A month in which some fish in the river might appreciate more water.
[Brent Gardner-Smith’s e-mail address is firstname.lastname@example.org]