Water official: Fork’s fish have few rights
September 18, 2002
The state’s top water official may yet endorse an agreement that would put more water into the nearly dry Roaring Fork River in Aspen, but not, ironically, if it is just to help the fish.
Hal Simpson, the director of the Colorado Division of Water Resources, said if the city of Glenwood Springs has a legitimate need for water from the Salvation Ditch Co., his office might be willing to approve an arrangement that would add 5 cubic feet per second of water into the Roaring Fork just east of Aspen.
But if the lease between the ditch company and Glenwood is just a way for more water to be put into the upper Roaring Fork for environmental reasons, Simpson can’t endorse the deal.
He’d like to from a personal standpoint, but as the state’s chief enforcer of water rights, he has to look out for those who own the water. And when it comes to the water in the Roaring Fork River, fish are users, not owners.
“This whole thing seems to be a ruse,” Simpson said on Tuesday. “But get me a letter from Glenwood saying that they are expecting a water shortage and maybe they can make this work.”
What the Salvation Ditch Co. and Glenwood Springs are trying to make work is a lease agreement that would allow the ditch company to leave 5 cfs of water in the Roaring Fork and send it downstream to Glenwood.
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Glenwood would take about 2 cfs of the water to use on its playing fields and parks, which are not being watered as usual because of the dry season.
The reason Simpson thinks the agreement may be a ruse is because the Salvation Ditch Co. has been trying to find a legal way to keep more water in the Roaring Fork this summer to benefit the fish, and the most expedient way to do that was to find a downstream user it could “loan” the water to.
That user has proven to be Glenwood Springs.
“The water lease agreement is not a ruse,” said Tom Kinney, the attorney for the Salvation Ditch Co. “But it does have the incidental, but not insignificant, benefit of providing water [to the fish].”
The ditch company currently diverts 20 cfs of water out of the Roaring Fork into its ditch just east of Aspen. And when the river’s flow dips below 20 cfs, as it has for over two weeks this summer, the ditch runs but the river dries up, leaving fish stranded in barely connected pools the length of the river’s run through downtown Aspen. Tuesday, the Roaring Fork just above Aspen was flowing at 27 cfs.
The water in the Salvation Ditch flows down to irrigate fields in McLain Flats and Woody Creek. The company owns senior water rights to the river dating back to 1902.
After a plea from the city of Aspen to not divert all 20 cfs of its water, the Salvation Ditch Co. began looking for a way to help out. Simply leaving 5 cfs of water in the river doesn’t work because the ditch has called out other upstream users, and those users may have a right to the water if the Salvation Ditch Co. isn’t going to use it.
But a state statute dating back to the 1890s allows one water owner to send water downstream to another water user “for the purpose of saving crops or using the water in a more economical manner.”
Once the two water users sign a lease, the statute says “the division engineer shall recognize” the lease, providing there is no injury to any other water rights holders.
However, the lease between Salvation and Glenwood wasn’t recognized by the division engineer in Glenwood Springs and instead it was sent upstairs to Simpson, the state engineer.
But he is wary of approving agreements under the old statute, especially since there is new state law (House Bill 1414) that provides a way for water to be loaned between users when there is a health and safety emergency.
“But Glenwood does not have an emergency at this point,” said Kinney. “We’re saying we don’t meet the qualifications under House Bill 1414.”
Instead, Kinney is trying to make a case that Glenwood is in a situation that fits under the much older statute pertaining to water loans.
He is arguing that since it would be cheaper for Glenwood to use the raw river water instead of using treated municipal water to irrigate its playing fields, there would be an economic benefit to the lease arrangement. And because of that, the state should simply recognize the lease and let the water flow.
But Simpson isn’t willing to do so yet. Today, he is expecting more information from Glenwood.
“I need Glenwood to tell me they have a real problem,” Simpson said. “If they are are just part of this charade, well … I’m a fly fisherman and I understand what they are trying to do. I’d love to protect the fish but I have to protect the rights of the people.”
And so it may be that Simpson still refuses to recognize the lease between the ditch company and Glenwood.
“I’m really glad that he is dialoguing,” said Kinney. “But I don’t see us moving any closer to his accepting the older statute.”
If that’s the case, and the river drops below 20 cfs again, the fish in the river could be stranded by a combination of too little water and too much regulation.
[Brent Gardner-Smith’s e-mail address is email@example.com]