Water-sharing deal is closer
September 20, 2002
The state’s top water official now says it’s OK with him if the Salvation Ditch Co. shares its water with the fish in the Roaring Fork River.
And the ditch company says it is willing to share the water, but only if the water official says in writing that he will not consider the release of water a waste, and that he will ensure no one else between the ditch and Castle Creek diverts the water.
“If we can get those two assurances, then we are more than willing to come to the table and say ‘Yes, let’s do this for the remainder of the season until we close our headgate in three weeks,'” Kinney said.
The proposed deal may also be dependent on if a $6,500 lease for the water can be worked out between the city of Aspen and the ditch company.
It was not clear at press time whether Hal Simpson, the director of the Colorado Division of Water Resources, would meet Kinney’s terms. But he did say on Thursday afternoon that he saw no problem with the Salvation Ditch simply stopping the diversion of 5 cfs out of the Roaring Fork River if it wanted to.
“The Salvation Ditch could just cut back on their diversions by 5 cfs to keep the river wet and not be impacted by anybody,” Simpson said. “They can relax their diversion, and there is no penalty to them.”
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The positions and tactics of Kinney and Simpson have been evolving throughout the week as the ditch company seeks a secure way to stop diverting 5 cubic feet per second of water from the Roaring Fork River and as Simpson responds to various requests and new information coming from the Roaring Fork watershed.
In the meantime, the fish and the aquatic habitat in the Roaring Fork River have been enduring low flows not seen since Colorado’s water laws were written in the 1890s.
For a two-week period earlier this summer, the Salvation Ditch Co. was legally exercising its water rights and diverting all the water from the Roaring Fork River into its irrigation ditch just east of Aspen. That left fish populations stranded in shallow warm pools and the river devoid of any flowing water.
The city approached the ditch company and asked if it could leave some water in the river. For the past two weeks, Kinney has been trying to find a legal way to stop diverting the water without weakening the ditch company’s water rights.
It has not been easy because there is no legal mechanism for a water rights holder to simply leave water in the river to benefit the environment, except by permanently donating the water rights to the Colorado Water Conservation Board, which seeks to keep the state’s rivers and streams from falling below certain levels. And water rights holders are wary of taking any action that would be perceived as weakening their rights.
“I will do anything I can to save the fish without losing our water rights,” said Mary Jane Garth, president of the Salvation Ditch Co. “But I can’t override the advice of my attorney and the board.”
And despite the recent rain and snowfall in the Roaring Fork Valley, it is not yet a moot point.
“Unless it keeps raining, the river is going to be back to where it was in three or four days,” Kinney said. On Thursday, the river had climbed up to about 41 cfs before dropping to 35 cfs by nightfall. When the river dropped under 20 cfs earlier this summer, all the water was going into the Salvation Ditch.
And the recent precipitation changed another aspect of this fluid situation.
On Wednesday, Simpson was told by an attorney with the city of Glenwood Springs that it no longer needed a “loan” of irrigation water from the Salvation Ditch for its parched playing fields because of the recent rains.
Kinney had been working with Glenwood to lease the city water from the Salvation Ditch, which would have had the added benefit of providing water for the Roaring Fork on its course through Aspen.
But Simpson was balking on approving the proposed lease, saying the 19th-century legal statute that allows for such loans was not the proper way to accomplish what the Salvation Ditch was trying to do.
“Everything can happen without trying to utilize a statute that doesn’t fit,” Simpson said.
The “let it flow” stance that Simpson adopted on Thursday was also the result of his learning that the Salvation Ditch Co. was not placing a senior call on any upstream water users. If it had been, an upstream called-out user could have taken the position that if the Salvation Ditch Co. didn’t need the 5 cfs, and was willing to just let it run down the river, then it could surely use it.
“The Salvation Ditch is not calling anybody else out,” Simpson said.
And so, the way he sees it, the ditch company is free to release the water. Simpson said there was a similar situation earlier this year on the Yampa and White rivers, where a ditch company simply kept some water in the river to help a downstream user.
“They shared it,” Simpson said. “And no one was worried about the consequences up there.”
But Kinney is not yet comfortable with that position.
All water rights aside, he said he has an obligation to the shareholders of the ditch company to sell the water, not just give it away. And the city of Aspen may be a willing lessee.
And then there is the nagging concern of weakening a 1902 water right, which in this case allows the Salvation Ditch Co. to divert up to 58 cfs of water.
“I need the state engineer to recognize that it is not a waste of our water rights and that he will guarantee that the water remain in the river between the Salvation Ditch headgate and Castle Creek,” Kinney said. “If he sends me a one-paragraph letter saying that, then I am ready to talk to the city of Aspen now.”
And maybe, just maybe, the fish in the Fork will find some water leaking out between the state’s water laws, its regulatory agencies and the legal owners of all of the water now in the river.
[Brent Gardner-Smith’s e-mail address is firstname.lastname@example.org]