Community Agriculture Alliance: Colorado water law evolving
October 3, 2013
Steamboat Springs — With the recent headlines of catastrophic flooding in Colorado, the concept of drought is not quite as vivid as it was only a few months ago.
The severely dry condition our state has experienced during much of the past decade has prompted legislative action, and several amendments to Colorado water law were passed this year. Perhaps the most significant bill signed into legislation explores the potential fallowing (noncultivation) of land and subsequent leasing of the water that otherwise would have irrigated that crop.
House Bill 1248 authorizes three pilot projects within the Arkansas River Basin to study the leasing of water for temporary municipal use. The bill addresses a foundation of water law in this state that essentially penalizes water users for non-use. Not using the decreed amount of water can put a water right at risk of winding up on the abandonment list, thus water users have been conditioned for generations to divert every drop decreed to them.
Where water has been in high demand, it has been common for water users to sell their water to thirsty, growing municipalities. The sale of the water includes an agreement to permanently "dry up" the land whereby the seller agrees to never irrigate the land again since the water right is tied to the land in the original decree. The bill recognized that continuing down the same path of "buy and dry," Colorado could lose more than 500,000 irrigated acres, and basins could lose as much as 35 percent of their irrigated acreage within a couple of generations.
The idea behind HB1248 is to allow a farmer or rancher to fallow the land (with some limitations) and then lease the water without risk of abandonment and without the extreme legal expense and lengthy court process associated with the sale of water. If the study is successful, the resulting process ultimately should reduce pressure on agricultural producers whose water is being closely watched by non-agricultural water users. Additionally, the ability to lease water rather than sell it should add value to what is arguably a farmer and rancher's most valuable asset.
Along with the fallowing and leasing bill, Colorado also passed Senate Bill 13-019, which allows water users to reduce their consumption in some instances (drought) and not be penalized for non-use. Senate Bill 13-041 amends the Colorado Revised Statutes to loosen some of the administrative processes associated with making conditional storage rights absolute. Lastly, Senate Bill 13-074 gives water judges more leeway to determine how much acreage has been historically irrigated when the decree is vague or silent on the legal description of the land intended to be irrigated.
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As we've witnessed during the past few weeks, water in the West fluctuates wildly. This natural volatility, combined with population growth and resulting demand on a limited resource, means the times of water shortage will be more pronounced and impactful in the future. The passage of these bills certainly will prompt change to the long-established ways we look at water in Colorado and might help reduce the pressure on agricultural producers to separate their water from their land.
Christy Belton is a member of Routt County CattleWomen and a ranch and land Realtor. She and her husband own a cow/calf, yearling and hay operation in the Elk River Valley.