2016 #coleg HB16-1228: Aurora tells judge legislation hurts ability to take Ark Valley water– The Pueblo Chieftain

Colorado Capitol building
Colorado Capitol building

From The Pueblo Chieftain (Chris Woodka):

Aurora has filed a water court challenge to its 2009 agreement with the Lower Arkansas Valley Water Conservancy District, claiming legislation the city itself backed could hurt its ability to remove water from the Arkansas Valley…

HB1228, the latest version of flex water rights legislation Aurora, Colorado Corn and Ducks Unlimited began promoting in 2013, was signed into law by Gov. John Hickenlooper in May. The current bill is titled “Alternative Transfer Mechanism for Water Rights” rather than flex legislation.

During committee hearings, lawmakers tiptoed around saying the bill set up a flex water right. But some members of Colorado Water Congress jokingly called it “Son of Flex” during the process.

The bill allows water to be transferred from farms to other uses five years out of 10, but only within the basin of origin under a new type of court decree. It also requires the Colorado Water Conservation Board and state engineer to approve and develop rules about how to implement transfers on an annual basis.

Aurora’s lobbyist, Margy Christiansen, registered in support of the bill in March. Also in March, Lower Ark officials testified before the CWCB that Arkansas Valley Super Ditch would have no interest in using the legislation because it was too cumbersome.

Lower Ark proposed a different method that has yet to be introduced as legislation.

In a court filing Friday, Aurora’s attorney John Dingess asked Division 2 Water Court Judge Larry Schwartz to limit Super Ditch’s used of HB1228, claiming it would reduce the amount of water available to Aurora to take out of the Arkansas River basin.

One of the provisions of the 2009 agreement between Aurora and the Lower Ark was that Aurora would first attempt to lease water, if needed, from the Super Ditch.

In his filing, Dingess argues that Super Ditch would not be able to lease water to Aurora because the city is outside the Arkansas River basin. He also argues there would be less water available to Aurora because the new bill would make leases available five years out of 10.

In the Super Ditch pilot program, leases are available only three years in 10 from any farm.

Aurora is constrained by its 2003 agreement with the Southeastern District to take water only three years in 10 until 2028. Aurora could lease water in seven years out of 15 until 2043 under the agreement. Aurora is limited to leasing 10,000 acre-feet of water (3.26 billion gallons) annually and only in drought-recovery years.

Finally, Dingess questions the constitutionality of HB1228 because it promotes speculation.

“The change frees up to half the yield of the water right from the anti-speculation doctrine in that neither the type of use nor place of use need be specified in the change decree,” Dingess wrote. “Suspension of the anti-speculation doctrine presents constitutional questions.”

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