From Aspen Journalism (Brent Gardner-Smith):
An innovative deal put together by the Colorado Water Trust to leave more water in the Little Cimarron River, a heavily-diverted tributary of the Cimarron and Gunnison rivers east of Montrose, could serve as model solution to the low flows that often plague the Crystal River in late summer.
“Any new tool coming online that can help agriculture and the environment share water could be useful in the ongoing conversation about the Crystal River,” said Amy Beatie, the executive director of the Colorado Water Trust, a nonprofit dedicated to restoring streamflows in Colorado.
The “new tool” is a recognition that under current state law an irrigation water right can be changed to also include a late-season instream flow right, at least if the Colorado Water Conservation Board has an interest in the water right.
Under such a “split season” approach, water can be diverted as normal to, say, grow hay in June and July. But in August and September, when river levels typically drop, water normally diverted for irrigation can be left in the river.
In the case of the Little Cimarron River, it will allow 5.8 cubic feet per second of water to flow past a diversion headgate in late summer down nine miles of river, including 3.3 miles of the Little Cimarron normally left nearly dry.
Rick Lafaro, the executive director of the Roaring Fork Conservancy, which is working to find solutions to low flows on the Crystal River, said he thought the Little Cimarron deal was “pretty exciting.”
And Beatie of the Water Trust said the concept has statewide application.
“If there is anybody who would be willing to forgo irrigation later in the irrigation season, and would be interested in a payment from us to do that, and then would allow us to take a water right through the water court process in order to protect it for instream flow, then it works anywhere in Colorado,” Beatie said.
But such arrangements can be complex.
“These water acquisitions all require a confluence of a lot of variables,” said Linda Bassi, the head of the CWCB’s instream flow program. “You have to find a water right that is available, and it has to be in a place where it will benefit a reach that needs water.”
Streams dry from diversions
Sections of the lower Crystal River often run dry, or nearly so, in the late summer months, due in large part to a number of irrigation diversions on the river.
A similar situation has existed for years on the Little Cimarron River. It flows pristinely out of the Uncompahgre Wilderness but is often left nearly dry below the McKinley irrigation ditch.
In an effort to leave more water in the Little Cimarron below the McKinley Ditch, the Water Trust signed a contract on April 23 with the CWCB that allows for 5.8 cfs of water to be left in the stream in late summer.
“As a result, the Little Cimarron River is expected to remain a live stream during the irrigation season, and no longer experience dry-up conditions below headgates,” a memo prepared for the CWCB’s September 2014 board meeting states.
The memo also notes that the “split season use of the water is distinctive because it acknowledges and preserves the value of irrigated agriculture as well as the value of restoring flow to a local river.”
The water left in the Little Cimarron will also benefit a reach of the main Cimarron River, which runs into the Gunnison River below Morrow Point Reservoir.
Deal took years
The Colorado Water Trust has been working on the deal since 2008, when John Shephardson contacted the Trust about buying his water rights.
Shephardson had subdivided his scenic 214-acre ranch along the Little Cimarron into 35-acre parcels and wanted sell the land and the associated water rights.
Shephardson owned 1.5 shares, or 18.75 percent, of the shares in the McKinley Ditch. His shares gave him the right to use 5.8 cfs of water to irrigate 194.5 acres of land, where he grew hay and raised cattle.
The McKinley Ditch as a whole has rights, with appropriation dates ranging from 1886 to 1912, to divert up to 31 cfs of water from the Little Cimarron to irrigate 947 acres of land.
Shephardson was ultimately not successful in developing his property and Montrose Bank foreclosed on it.
In 2012 Western Rivers Conservancy, which buys land to help preserve rivers, purchased both the property and the water rights from Montrose Bank.
In January 2014 the Water Trust bought the 5.8 cfs of water rights from the Conservancy for $500,000.
In September 2014 the CWCB board agreed to purchase a permanent “grant of flow restoration use” from the Water Trust for $145,640. The CWCB is the only entity under state law that can hold an instream flow right.
The state’s purchase price was based on an estimate of the loss of agricultural revenues that would come by leaving the water in the river in late summer.
“We’re purchasing a right to use the water that would have been used to produce a second cutting of hay,” said the CWCB’s Bassi.
The water court process
On Dec. 31, 2014 the CWCB and the Water Trust filed an application in Div. 4 Water Court in Montrose to change their water rights on the McKinley Ditch to add an instream flow right.
To date, only two statements of opposition have been filed in the water court case, and both are from neighboring landowners (David Taylor, Wayne Mauer) making sure their water rights are not injured by the change of use, said Beatie of the Water Trust, who believes the water court process will go smoothly.
Beatie said no part of Colorado water law needs to be changed to make the deal happen.
“All we’re doing is transferring a water right to instream flow purposes and making sure in our application that there isn’t injury to other water users,” Beatie said. “We took a customary transfer process and applied it to the outcome that we wanted, which was partial irrigation and partial flow restoration.”
Bassi, of the CWCB, said that creating a “split-season” use of water for both irrigation and instream flow has long been possible under Colorado water law, but such a use just hasn’t been applied for until now.
“This is the first time we’ve done it and we’re hoping it will create a template for more partnerships with agriculture and environmental interests,” Bassi said.
James Eklund, director of the CWCB, says the effort on the Little Cimarron is evidence of a “mindset shift” he’s seeing among irrigators, environmentalists and water regulators in the state.
“The idea that you can use a split-season concept exemplifies the potential for people to get over the perception that a water right can only be used for one thing,” Eklund said. “It is representative of a very big change that I think we’re going to need to see more and more of going forward.”
Editor’s note: Aspen Journalism is collaborating with The Aspen Times and the Glenwood Springs Post Independent on coverage of water and rivers. The Times published this story on Monday, April 27, 2014.
More instream flow coverage here.