2015 Colorado legislation: HB15-1259 (#RainBarrel) passes final House vote 45 to 20 #coleg

March 23, 2015
Rain barrel schematic

Rain barrel schematic

From the Associated Press via the Fort Collins Coloradan:

The bill allows homeowners to collect up to 110 gallons in rain barrels.

Colorado’s rain-barrel ban is little known and widely flouted, with rain barrels for sale at many home-gardening stores and commonly used by home gardeners.

But the barrels technically violate Colorado water law, which says that people don’t own the water that runs on or through their property. They can use the water, but they can’t keep it.

Colorado’s law banning rain barrels was amended in 2009 to allow use by people with their own wells. But the change didn’t apply to municipal water users.

From The Durango Herald (Peter Marcus):

The measure addresses what some believe to be an antiquated prohibition on collecting and storing rainwater from roofs in Colorado.

“Colorado is the only state where it is illegal to collect and use rainwater,” said Rep. Daneya Esgar, D-Pueblo, who co-sponsored the bill. “I’m glad to see so much bipartisan support for this common-sense bill.”

The measure was amended to allow individuals to keep rain from their roof in up to two 55-gallon rain barrels for use in their garden or on their lawn. The bill started at two rain barrels with a combined storage of 100 gallons, but lawmakers decided to slightly raise the number.

Sponsors pointed out that an estimated 97 percent of water that falls on residential property never ends up in a river or stream system.

But critics say the measure would steal water rights from downstream users. They say water does not belong to someone simply because it fell on a roof. Instead, the water is return flow that someone downstream has a right to, especially if that water is being stored, say critics.

Republican Reps. Don Coram of Montrose and J. Paul Brown of Ignacio both voted against the measure. Coram said the bill serves as a literal slippery slope, suggesting that what starts as roof collection could end in allowing Coloradans to collect rainwater off their entire property.

“We keep nibbling away on the prior appropriation doctrine, and you know you eat an elephant one bite at a time,” Coram said, referring to the system in Colorado in which water rights are granted to the first person to take water from an aquifer or river, despite residential proximity.

“I object more to changing the process,” Coram added.

The bill would also set standards for rain barrels, including mandating screens to filter out debris and insects.

Sponsors estimated that with two 55-gallon barrels, residents cold capture more than 600 gallons of water each year.

Environmental groups praised the bill as another step towards conservation.

“While the amount of water saved is modest, having rain barrels in yards around the state will serve as an important tool to increase Coloradans’ knowledge of our limited rainfall and water supply,” said Pete Maysmith, executive director of Conservation Colorado. “This common-sense step should help people understand the need for smart water conservation policies.”

From The Pueblo Chieftain (Chris Woodka):

In the 1894 hit song “Playmate, Come Out and Play With Me,” the rain barrel is forever lodged in our collective consciousness right between the apple tree and cellar door.

But Colorado has waited 121 years since then for the use of rain barrels to become legal.

On Monday, the state House took the first step toward legal rain collection with the passage of HB1259, which would allow collection of up to 110 gallons in two 55-gallon drums. The bill passed 45-20 and now heads to the state Senate.

“Colorado is the only state where it is illegal to collect and use rainwater,” said state Rep. Daneya Esgar, who co-sponsored the legislation. “I’m glad to see so much bipartisan support for this common-sense bill.”

She sponsored the bill after hearing people talk about rainwater collection.

“It makes more sense to collect the water and use it when it’s needed,” Esgar said. “Really, the purpose is to get people to talk about water use and to be conscious of it.”

Colorado’s ban on rain barrels can be traced back to the state constitution and subsequent court cases that prohibit any sort of detention of water upstream from a senior right. It’s the same concept that poses a dilemma when considering flood detention structures.

Has the rain-barrel ban been rigorously enforced?

“Not that I can recall,” said Division 2 Engineer Steve Witte. “I would say it’s been rarely enforced. If people ask, there is a policy on (the Division of Water Resources) website.”

A 2009 state law (SB80) authorized the use of rain barrels in connection with other water rights. Another 2009 bill (HB1129) authorized pilot projects for rainwater harvesting. So far, the proposed Sterling Ranch development in Douglas County has been the only applicant.

HB1259 would allow any single-family residence or multifamily residences with four or fewer units to collect rainwater. Rainwater could only be used on lawns or in gardens, and would not be allowed as drinking water or for any other indoor uses. Barrels also would be required to have a sealable lid.

Opponents of the bill said it opened the door to other forms of capturing water before it reaches downstream users. Supporters argued that 97 percent of the water on residential lots never makes it into the stream system anyway.

If the rain-barrel law passes, homeowners will have a new source of water for that apple tree, while keeping rain from sliding down the cellar door.

More 2015 Colorado legislation coverage here.


2015 Colorado legislation: SB15-183 (Quantify Water Rights Historical Consumptive Use) passes Senate assigned to House Ag committee #coleg

March 23, 2015

Flood irrigation -- photo via the CSU Water Center

Flood irrigation — photo via the CSU Water Center


From The Grand Junction Daily Sentinel (Charles Ashby):

he Colorado Senate gave final approval Tuesday to a water bill that made some Western Slope lawmakers a bit uneasy.

The measure, [SB15-183], requires water court judges, when considering changes in water uses, to decide based on actual historical use of that water, rather than uses not approved by a prior water decree.

Several Western Slope lawmakers from both parties questioned why such a bill would be necessary, saying it allows water rights owners who use water for unapproved purposes to get away with that illegal use.

“We have water courts for a reason,” said Sen. Ellen Roberts, R-Durango. “Water courts are highly trained to deal with technical issues. This bill basically is skipping over the water courts system and coming here to the Legislature to try and get a legislative result, as compared to having it well considered in the court system that, again, is trained to deal with these kinds of things.”

Supporters of the measure said the bill is designed to give direction to water court judges based on a recent Colorado Supreme Court decision in a case between Dick Wolfe, the state’s water engineer, and the Sedalia Water and Sanitation District over the district’s historical use of water.

Rep. Jerry Sonnenberg, R-Sterling and a sponsor of the bill, said it’s the Legislature’s job to give direction to the courts when there is undefined law on an issue.

“The question here is, do we want a consistent use of water, a consistent means of determining what the volume or quantity of that water is, as the Supreme Court did in the Sedalia case?” Sonnenberg said. “That’s what we’re trying to do, is clarify what they have asked us (about) what should and should not be used in quantifying a water right in a change of use.”

Sen. Kerry Donovan, D-Vail, said the bill rewards water users who use that water for unapproved uses.

The bill has support from virtually every water group in the state except the Colorado River Water Conservation District.

In the end, only eight senators voted against the bill, including Donovan, Roberts and Sens. Ray Scott, R-Grand Junction, and Randy Baumgardner, a Hot Sulphur Springs Republican whose district includes Garfield County. It now heads to the House for more hearings.

In a related matter, the House approved a water bill Tuesday that allows the Colorado Water Conservation Board to acquire water rights for up to 12 pilot projects to measure efficiency savings for instream flow use.

The pilot projects would take at least 10 years to complete.

The bill heads to the Senate for more debate.

More 2015 Colorado legislation coverage here.


Justice Gregory Hobbs to say adiós to the Colorado Supreme Court in August

March 20, 2015

Justice Hobbs is a friend of Coyote Gulch. Over the years I’ve published a small portion of his poems including photo poems that he’s written in the recent past. On the occasions where I’ve had an opportunity to talk with him at some length I’ve learned the depth of his life experience — he has travelled, written, and learned about the world around him due to his curious nature and love of knowledge. His love of family also shows up in conversations.

One of my favorite Hobbs’ poems :

Coloradans

To each of us
The land, the air, the water,
Mountain, canyon, mesa, plain,
Lightning bolts, clear days with no rain,

At the source of all thirst,
At the source of all thirst-quenching hope,
At the root and core of time and no-time,
The Great Divide Community

Stands astride the backbone of the continent,
Gathering, draining, reflecting, sending forth
A flow so powerful it seeps rhythmically
From within,

Alive to each of us,
To drink, to swim, to grow corn ears
To listen to our children float the streams
Of their own magnificence,

Out of their seeping dreams,
Out of their useful silliness,
Out of their source-mouths
High and pure,

The Great Divide,
You and I, all that lives
And floats and flies and passes through
All we know of why.

Reprinted, with permission, from Colorado Mother of Rivers, Water Poems by Justice Greg Hobbs

Another poem that Greg sent in the wee hours of the morning after we all learned of Ed Quillen’s passing:

Hurrah for Quillen!

This incomparable

Curmudgeon Wit gloried in the

great First Amendment.

Reprinted, with permission.

Here’s an article about his retirement from Mark Harden writing for the Denver Business Journal:

Gregory J. Hobbs Jr., a Colorado Supreme Court justice known as an expert on water and environmental law, will retire Aug. 31 after more than 19 years on the high court, the court announced Thursday.

Greg Hobbs was appointed to the court in April 1996 by Gov. Roy Romer and has twice been retained for 10-year terms by the state’s voters.

He previously practiced law for 23 years, focusing on water, environment, land use and transportation.

In 2007, Hobbs was named by then-Supreme Court Chief Justice Mary Mullarkey to lead a committee to review the state’s water-court system.

In 1997, Hobbs wrote a key Supreme Court ruling in a case over the way in which Denver Water figured its rates, brought by suburban water districts. The decision said Denver Water has the authority to set rates however it likes, but warned that the utility can’t “abuse its authority” to “reap monopoly profits.”

Hobbs is a former senior partner with Hobbs, Trout & Raley PC, and partner with Davis Graham & Stubbs LLP. He also previously served as first assistant Colorado attorney general with the Natural Resources Section and as an enforcement attorney with the U.S. Environmental Protection Agency.

Hobbs — a native of Gainesville, Florida — also has written poetry, collected in the 2005 book “Colorado, Mother of Rivers: Water Poems”; formerly taught environmental law at the University of Denver; and once was a sixth-grade teacher in New York City.

Thanks for your friendship Greg and good luck to you in retirement.

More Coyote Gulch posts that reference the Justice here and here


2015 Colorado legislation: Rainwater catchments bill passes out of House ag committee

March 17, 2015
Rain barrel schematic

Rain barrel schematic

From The Denver Post (Anna Gauldin):

A bill that would allow residential rainwater collection sailed through a committee hearing Monday, making headway in Colorado’s decades-old water rights battle.

House Bill 1259 passed the Agriculture, Livestock & Natural Resources Committee 8-5 and now advances to the full House.

“We’re simply wanting to allow people to collect the rain that falls off of their rooftops … to put back into the earth,” said the bill’s sponsor, Rep. Daneya Esgar, D-Pueblo.

The proposal would limit total barrel size to 100 gallons per residence. Proponents say that the average homeowner could collect about 600 gallons of water annually to water their lawns or gardens.

That amount of water could sustain a vegetable garden or a flower bed, according to Drew Beckwith, water policy manager for Western Resource Advocates, who testified for the legislation.

“One of the most important things this bill accomplishes is putting urban and suburban water users in the mind frame of conservation,” said co-sponsor Rep. Jessie Danielson, D-Wheat Ridge.

Esgar said people already use rain barrels and were shocked to find out it’s illegal. Beckwith said Colorado is the only state to prohibit residential collection of rain.

Colorado’s water rights system — known as “first in time, first in right” — emerged during the mining booms of the 19th century. Using that rhetoric, people argue that collecting rainwater prevents it from reaching rivers, violating the rights of downstream users.

“It’s a violation of the doctrine of prior appropriations,” said Pat Ratliff of the South Metro Water Authority. “It’s not their water (to use). It’s a return flow that somebody downstream has a senior right to.”

From CBS Denver:

Lawmakers are working to change a decades-old law that prohibits Coloradans from collecting rainwater.
It’s currently against the law — in almost all cases — to put a bucket by a downspout and catch the rain because that water is the property of people downstream. But a bill changes water rights, allowing homeowners to store up to 100 gallons of rain at a time.

It’s been illegal to collect rain in Colorado for more than a century. It can be directed by changing gutters or grading, but it can’t be collected.

“Many people I’ve spoken to think I’m joking when I tell them that the collecting of the rain off of your roof is illegal,” said Rep. Daneya Esgar, D-Pueblo.

Esgar and Rep. Jessie Danielson, D-Wheat Ridge, say it’s time the law changed. A recent study found 97 percent of rain doesn’t even make it to a stream because it’s absorbed by vegetation or evaporates.
Esgar and Danielson say homeowners ought to be able to collect and use the water where they need it most, as long as they put it back into the ground.

“Water collected through this bill will not even be enough to water the average blue grass lawn in Colorado even once,” Esgar said.

“Anytime that you manipulate that system — any — it affects somebody,” rancher Jim Yahn said.

Yahn says the study looked at only a small natural area in Douglas County, not municipal runoff. He says even a little water makes a big difference.

“There are people waiting in line for that water, and if they don’t get that little influx from a rainfall event, then they don’t get that water that they are going to put on their crops, that they’re going to use to offset their well pumping,” Yahn said.

Supporters insist the bill will result in more water for everyone by encouraging conservation.

“Perhaps when they see how little water 100 gallons really is, they’ll think twice about how much water they’re using when they turn that faucet on and it comes pouring out to water their lawns,” Danielson said.

Under the bill Coloradans can only use the rain collected outside — on flowers for example.

The state is in the middle of a 10-year study of rain harvesting in both urban and rural areas. Opponents say lawmakers should wait until that’s done.

The bill passed committee Monday and is headed to the full House.

More 2015 Colorado legislation coverage here.


A showdown over how transmountain diversions are calculated is brewing in the Colorado Supreme Court — Chris Woodka

March 3, 2015

From The Pueblo Chieftain (Chris Woodka):

A showdown over how transmountain diversions are calculated is brewing in the Colorado Supreme Court.

At issue is last year’s ruling on a change of use case filed by Aurora in water court in Pueblo.

Division 2 Water Judge Larry C. Schwartz ruled that Aurora is entitled to export an average of 2,416 acre-feet (787 million gallons) annually, even though Aurora waited more than 20 years to change the use of the water from agriculture to municipal.

Aurora shares Busk-Ivanhoe with the Pueblo Board of Water Works on the system that formerly was operated by the High Line Canal. It brings water into Busk Creek above Turquoise Lake from Ivanhoe Lake through the Carleton Tunnel, which once was a train passage and later an automobile route across the Continental Divide.

Pueblo Water has a 1993 decree changing its water rights from its 1971 purchase of its half of Busk-Ivanhoe. Aurora purchased the other half from High Line shareholders beginning in 1986, but did not file for a change of use until 2009.

Western Slope groups and the state Division of Water Resources are arguing that Aurora’s claim to water should be reduced by 27 percent because the city misused the water after purchasing its share of the Busk-Ivanhoe system.

They claim that Schwartz should have counted the 22-year period as zeros when calculating the historic use of water from the Busk-Ivanhoe system. Schwartz determined that the years where the water was used improperly should not count in the calculation, but said the amount of Aurora’s diversion should be recalculated separately from the amount awarded to Pueblo in 1993.

Aurora’s share is slightly less than Pueblo Water’s (2,634 acre-feet average annually) as a result.

Supporting Schwartz’s decision are the state’s largest municipal water providers, including Denver Water, Colorado Springs, Pueblo Water, Northern Water and the Southeastern Colorado Water Conservancy District, all of which bring water across the Continental Divide.

They argue that water courts serve to prevent injury to other water users, not penalize inappropriate historic uses.

“It’s not very likely to have a direct impact on any of our existing rights,” said Alan Ward, Pueblo Water’s resource manager. “We appreciate the court did not see a need to be punitive. That could be an issue with other water rights in the future.”

The Lower Arkansas Valley Water Conservancy District also supports Schwartz’s position because of its own pending change case on the Larkspur Ditch, which it purchased from the Catlin Canal and uses to bring water over from the Gunnison River basin.

Schwartz ruled in favor of Aurora in the case (09CW142) in May, and it was appealed by multiple Western Slope groups in October. Reply briefs in the case are due March 21, after which the court could hear oral arguments.

More water law coverage here


The Colorado River District, et. al. appeal May 2014 Aurora Busk-Ivanhoe diversion water court decision

March 2, 2015

From Aspen Journalism (Brent Gardner-Smith) via the Glenwood Springs Post Independent:

A water court case in Pueblo over the size of water rights from the upper Fryingpan River delivered through the Busk-Ivanhoe tunnel to the East Slope has now blossomed into a Colorado Supreme Court case full of powerful interests opposing each other across the Continental Divide.

A bevy of West Slope entities, including Pitkin, Eagle and Grand counties, the Colorado River District and the Grand Valley Water Users, Association are arguing against a May 2014 water court decision that gave Aurora the right to use 2,416 acre-feet of water from the Fryingpan for municipal purposes in Aurora instead of for irrigation purposes in the Arkansas River valley.

The new decree gives Aurora the right to divert up to 144,960 acre-feet of water over a 60-year period.

The other West Slope entities in the case are the Orchard Mesa Irrigation District, the Ute Water Conservancy District and the Basalt Water Conservancy District.

On other side, a list of the most powerful water entities on the East Slope have filed legal briefs supporting Aurora’s positions, including Denver Water, Colorado Springs, the Pueblo Board of Water Works, the Northern Water Conservancy District and the Southeastern Water Conservancy District.

Pitkin County is specifically arguing that the water court judge should have counted Aurora’s 22 years of undecreed use of the water for municipal purposes — between 1987 and 2009 — when determining the historic lawful use of the water right, and thus, the size of the right’s “transferable yield” from irrigation to municipal use.

Instead, the judge set 1928 to 1986 as the representative sampling of years and excluded the 22 years of Aurora’s admittedly undecreed use.

Expert testimony in the case indicated that if Aurora’s years of undecreed, or “zero,” use were averaged in, the size of the transferable water right would be reduced by 27 percent — which is what Pitkin County believes should happen.

“When water rights have been used unlawfully for more than a quarter of their period of record, a pattern of use derived solely from the other three-quarters of the period of record will not most accurately represent the historical use of the rights at issue,” attorneys for Pitkin County told the Supreme Court.

The Colorado state water engineer and division engineers in water divisions 1, 2 and 5 are also arguing alongside Pitkin County that the judge should have included the 22 years of “zero” use in a representative sampling of years.

“This court should remand the case with instructions to determine the average annual historical use between 1928 and 2009, including zeros for years when Aurora diverted water through the Ivanhoe Tunnel solely for undecreed uses,” attorneys for the state and division engineers wrote.

The various East Slope entities are arguing in the case that the judge did the right thing by not counting Aurora’s 22 years of undecreed municipal use.

“The water court’s quantification of the Busk-Ivanhoe rights followed all of the rules for a change case — it was based on a representative period of lawful decreed use, it was not based upon undecreed use, and it employed several other factors endorsed by this court to determine a representative period,” Aurora’s attorney’s wrote. “The water court correctly determined it need not go any further, rejecting the appellants’ novel legal theory and finding it unnecessary to prevent injury.”

UNDECREED STORAGE

Meanwhile, other West Slope entities, including the River District and Eagle County, are arguing that Judge Larry C. Schwartz erred in his opinion regarding the right to store water on the East Slope without a specific decree to do so.

“The water court misinterpreted the law and erroneously looked beyond the record in the original adjudication to conclude that no storage decree was necessary and then included water stored and water traded to others within the amount of the changed right,” attorneys for the West Slope entities wrote.

But the East Slope entities support the judge’s conclusion regarding storage.

“The water court correctly interpreted prior case law and ruled East Slope storage was within the ‘wide latitude’ accorded importers of transmountain water provided such storage did not result in an expansion of the Busk-Ivanhoe water rights,” attorneys for Aurora wrote.

Attorneys for Denver Water also told the court that “it does not matter whether a decree specifically identifies storage in the basin of use of the imported foreign water” because “once imported, the foreign water can be stored wherever.”

Built between the early 1920s and 1936, the Busk-Ivanhoe water system now diverts about 5,000 acre-feet of water a year from Ivanhoe, Pan, Lyle and Hidden Lake creeks, all tributaries of the upper Fryingpan River.

The system gathers water from the high country creeks and stores it briefly in Ivanhoe Reservoir, which sits at 10,900 feet. It then sends the water through a 1.3 mile-long tunnel under the Continental Divide to Busk Creek and on into Turquoise Reservoir near Leadville.

From there, the water can either end up in the lower Arkansas River basin, or via pumps, end up in the South Platte River basin, where Aurora is located, just east of Denver.

The Pueblo Board of Water Works owns half of the Busk-Ivanhoe water rights, which have a primary 1928 decree date. In 1990, Pueblo received a decree to use its half of the water for municipal purposes, and that decision is not at issue in this case.

Aurora bought 95 percent of its half of the Busk-Ivanhoe water rights in 1986, and by 2001 had purchased 100 percent of the right, paying at least $11.25 million, according to testimony in the case.

INTO WATER COURT

Aurora came in from the cold in 2009 and applied in water court to change its half of the Busk-Ivanhoe water to municipal uses.

And it also applied for specific water storage rights, including in a new reservoir to be built on the flanks of Mount Elbert called Box Creek Reservoir.

After a five-day trial in Div. 2 Water Court in Pueblo in July 2013, which resulted in 1,075 pages of transcripts and 6,286 pages of exhibits, Schwartz ruled in May 2014 in Aurora’s favor.

West Slope entities filed appeals in October with the Colorado Supreme Court, which directly hears appeals from the state’s water courts.

Opening briefs in the case were filed by West Slope entities in December, and a round of “answer briefs” and “friend of the court” briefs were filed last week by various entities.

The West Slope entities now have until March 21 to file reply briefs in the case.

Once the case is set, oral arguments will be heard before the Supreme Court justices in Denver.

Editor’s note: Aspen Journalism is covering rivers and water in collaboration with The Aspen Times and the Glenwood Springs Post Independent. More at http://www.aspenjournalism.org.


2015 Colorado legislation: Rainwater 
bill (HB15-1016) includes 
incentives — The Grand Junction Daily Sentinel

February 27, 2015

cistern

From The Grand Junction Daily Sentinel (Charles Ashby):

A 2009 pilot program designed to encourage the use of capturing rooftop rainwater in new developments to augment water supplies has never quite gotten off the ground.

As a result, a House panel Wednesday approved a bill designed to increase incentives for more such projects, to see if it is a good way to use non-potable water for such things as landscaping, and conserve water that is meant for actual drinking.

The measure, HB1016 [Promote Precipitation Harvesting Pilot Projects], lessens some of the requirements to qualify to be a pilot. To date, only one project has been approved, that in a small development on Denver’s south side.

The measure heads to the House Appropriations Committee for more debate.


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