There is just one state agency whose mission includes paying people to leave water in Colorado’s rivers for environmental reasons – and who can legally protect the flowing water – and that’s the Colorado Water Conservation Board, or CWCB.
However, the CWCB is also the state agency charged with planning for the state’s water supply, which is largely produced by taking water out of Colorado’s rivers.
And while the CWCB has, since 1973, created legal instream flow rights on 8,500 miles of streams and rivers, and completed over 20 voluntary water acquisitions, its instream flow program is not often positioned as the agency’s highest priority.
“We do have funding available to acquire water rights,” said Linda Bassi, the chief of the CWCB’s instream flow section. “But the instream flow program is just one facet of the different areas our board works in. Our board works in many areas to promote maximum utilization of water. And our board is sensitive about competing with other needs for water. So it is not an aggressive program.”
However, the agency has just closed on an innovative deal to pay the owner of water rights $145,640 to leave their irrigation water in the Little Cimarron River in late summer for environmental reasons, instead of diverting it into the McKinley Ditch.
It’s the first time for such a “split-season” deal, Bassi said, and it has long been legal to make it.
So how come more water rights owners don’t sell an interest in some of their late-season water to the state for environmental reasons?
“I think you could say that a lot of people probably do not know about this option,” Bassi conceded, when pressed.
And she noted, “Our acquisition program is voluntary, we don’t run around the state saying, ‘Hey, we want to buy your water.’”
Bassi suggested we put the question to her boss, James Eklund, the director of the CWCB.
So we did.
“Under my regime that’s exactly where we’re headed,” responded Eklund, who was appointed two years ago in June.
“These are the flows for the environment and we’ve got to do a better job talking about them and marketing them as viable tools for people to manage the resource,” Eklund said. “We’ve been derelict in our duty as agency. We need to do better. And we’re doing that with the Colorado Water Plan I think.”
Eklund is in charge of giving the governor a final Colorado Water Plan by December, including a chapter on maintaining healthy rivers in the state.
Whatever ends up on paper, Eklund is convinced that the process of developing the statewide plan is changing views about instream flow rights in Colorado.
“There is a mindset shift that is going on among irrigators, among conservationists, and among state bureaucrats,” Eklund said. “We’re all kind of used to thinking about these products as being uniquely situated for one particular use.
“And if you’re a farmer and a rancher, then you hate the instream flow program, and if you’re a conservationist then maybe you’re not a big fan of the water court process or the prior appropriation system, and right down the line everybody has entrenched themselves in a couple of different philosophies,” Eklund said. “But now we’ve got this paradigm shift in the way that people think about these tools.”
As part of the Little Cimarron deal, the CWCB and the Colorado Water Trust are currently in water court seeking to add an instream flow right to the existing irrigation right on 5.8 cubic feet per second of water, normally diverted into the McKinley Ditch.
The water right for irrigation would be used in the first half of the growing season, as appropriate, and then the water right for instream flow purposes would be used to connect two other still-wet sections of the Little River Cimarron, which runs into the Cimarron River and then the Gunnison River east of Montrose.
But are the circumstances on the Little Cimarron River deal, with its multiple willing conservation partners, too rare for it to ripple across the state?
Amy Beatie, the director of the Colorado Water Trust, which orchestrated the split-season deal, certainly gives credit to the conservation partners that came together to make the deal happen, including the Walton Family Foundation, which made it possible for the Water Trust to buy the water rights on the Little Cimarron for $500,000 from the Western Rivers Conservancy – and then grant an interest in those rights to the CWCB for $146,000.
“We were able to move through this transaction in partnership with a conservation organization that owns the underlying land,” Beatie said, referring to the Western Rivers Conservancy. “So it’s given us a chance to pilot this idea without playing with someone else’s water rights and incurring the risk of taking their water rights through water court.”
But Eklund doesn’t feel the Little Cimarron deal is a one-off thing, especially as the state’s “first in time, first in right” legal structure allows it.
“The split season right works within the law,” Eklund said. “It doesn’t run contrary to the doctrine of prior appropriation, it works within the doctrine, and arguably strengthens the doctrine,” Eklund said. “If you look at it that way, and you’re a rancher, perhaps you go, ‘Hey, that’s maybe something I would entertain doing.’”
Eklund said innovative use of water rights for environmental reasons is going to become more common.
“Even traditional water supply projects have to have multi-beneficial purposes to be successful,” Eklund said. “To build new storage or enlarge existing storage, the trend is for more multi-beneficial projects, and the environment is one of those benefits. The environment has a much-deserved seat at the table now.”
The CWCB board approved the purchase of the Little Cimarron water rights at its September 2014 board meeting.
And at the meeting, the deal got a blessing from board member Patti Wells, who as the general counsel for Denver Water is not shy about criticizing proposals she disagrees with.
“I can tell that this has been a tremendous amount of work because it is novel,” Wells said. “And it seems to that it’s the sort of thing we need to explore so that we can figure out if agriculture did something just a little differently, but not harmful, could there be a benefit for some other use?
“Being able to move water around to where it’s needed, when it’s needed by changing things just a little, I think, is hopefully the wave of the future,” Wells said.
Editor’s note: Aspen Journalism is collaborating with The Aspen Times and the Glenwood Springs Post Independent on coverage of rivers and waters. More at www.aspenjournalism.com.