DENVER – The drought might be drying up streams across Colorado, but it has unleashed a torrent of legislation at the state Capitol.
Legislators are considering changes to Colorado water law that would take the first serious legal steps toward encouraging conservation instead of maximum use of water. But their ideas are controversial.
“We need the ability to respond to the drought,” said Sen. Ellen Roberts, R-Durango, who is sponsoring a bill to allow more year-to-year water storage in reservoirs to save for the next dry spell.
Currently, Colorado water law takes a “use it or lose it” attitude, and other legislators want to make a big change to the legal doctrine that dates back more than a century.
“This is really the first time that we will create incentives instead of disincentives in terms of creating efficiency in agriculture,” said Sen. Gail Schwartz, D-Snowmass Village, the chairwoman of the Senate Agriculture Committee.
The law is at once simple and maddeningly complicated. Basically, people can claim a water right by being the first to use unclaimed water on a stream, and they can keep the right as long as they’re still using the water.
But the law doesn’t allow users to save for a non-rainy day. Courts can partially revoke a water right if the owners don’t use it.
Schwartz’s Senate Bill 19 would forbid water judges from reducing farmers’ water rights after they install more efficient irrigation.
In the House, Rep. Randy Fischer, D-Fort Collins, is sponsoring House Bill 1044, which allows people to capture graywater – used water from showers and washing machines – for reuse.
But not everyone thinks conservation is always a good idea.
Fischer is now chairman of the House Agriculture Committee, but his graywater bill died in that committee last year when Rep. Jerry Sonnenberg, R-Sterling, was in charge.
Sonnenberg farms in Northeast Colorado, and he and his neighbors depend on water that’s “wasted” upstream in the Front Range cities.
“That’s why when I’m in Denver, I always flush twice,” Sonnenberg said.
He represents another side in the debate – one that looks to more reservoir storage as a solution to drought.
“We’ve got to keep Colorado’s water in Colorado, and the only way to do that is water storage,” Sonnenberg said.
Sonnenberg is a sponsor, along with Roberts and Fischer, of Senate Bill 41, which takes on Colorado Supreme Court decisions that future drought mitigation and firefighting cannot be used to justify a water storage right.
Roberts said the law discourages prudent planning for droughts.
“The idea of it is to push back on those court cases and say, no, you can store water for firefighting and drought mitigation,” Roberts said.
But defining “drought mitigation” could be controversial. The state Supreme Court has taken a hard line against cities that try to put away too much water for the future.
In 2009, it overturned a Pagosa Springs water right that sought to lock up enough water for 100 years of growth. Roberts said she’s not trying to overturn the Pagosa case.
But in the debate between storage and conservation, perhaps the most powerful force is inertia.
Water bills typically attract intense lobbying, and Sonnenberg said his ideas aren’t popular at the influential Colorado Water Congress.
“We have legislators trying to make water policy and lawyers who represent the Water Congress trying to stop water legislation,” Sonnenberg said.
The Water Congress has not taken positions on the most controversial bills yet, said Doug Kemper, the group’s executive director.
Schwartz agreed that her bills also face a struggle.
“People have paid a lot of money to maintain the status quo, and that doesn’t respond to the crisis in our state,” Schwartz said.
The debate will get real next week.
The House Agriculture Committee will hear four water bills Monday, including the graywater bill. Roberts’ storage bill will have its first hearing Thursday.
Also on Thursday, Rep. Don Coram, R-Montrose, will have the first hearing for his bill to make it easier for gas and oil companies to use produced water for dust suppression.
And finally Thursday, the Water Congress will hold its annual convention, which will attract the state’s most powerful water lawyers to Denver.