More than two dozen El Paso County water basins that hold back flood debris and ensure local water quality are caught up in an unforeseen battle over water rights, putting the basins at the mercy of state lawmakers.
Colorado Springs utility and stormwater managers, along with nonprofits charged with managing recovery in the Waldo Canyon fire burn scar, were taken aback last fall when the state declared that 25 of the 30 major basins violate a state statute that prevents stored water from affecting other water rights. In a January follow-up letter, the Colorado Division of Water Resources said unless the handful of entities that manage the basins can afford to replace some of the lost water, they could face legal action from the state.
But the letter could all be for naught, if a bill clarifying water use in basins passes through the Colorado Legislature this spring. Senate Bill 212, sponsored by Sen. Jerry Sonnenberg, R-Sterling, would allow retention basins to hold water for 72 hours without requiring agencies to make up for lost water.
But this is more than a tiff over water rights. The letter jeopardizes some of the most effective life-saving tools in western El Paso County, said Theresa Springer, environmental education coordinator for the Coalition for the Upper South Platte, known as CUSP. The 25 basins listed in the letter catch flood debris coursing off the Waldo Canyon burn scar – debris that has claimed lives and damaged homes and roadways in the county since the 2012 fire.
“This is the biggest tool in our tool box,” Springer said of the basins. “Right now, we’ve got all of our hopes on this bill.”
Although the basins have become a key part of post-fire flood mitigation in the county, some were built without taking into consideration state requirements, said Steve Witte, a division engineer with the state who sent the letter.
Witte toured the basins with Springer last summer, and Springer had no idea the basins were in violation until she read the letter, she said.
Witte determined that the basins violate state guidelines because they do not make provisions for lost water to downstream junior rights users.
“We outlined some parameters under which these basins could be constructed,” Witte said. “But when we investigated, we found those parameters had not been observed. That’s what created some concerns for us.”
The majority of the basins inspected hold water for 72 hours, during which time they slowly drain. When it comes to basins, that’s a practice that Colorado has always allowed, although it wasn’t officially on the books, said Tim Mitros, the stormwater engineer for the city of Colorado Springs, which also received a copy of the letter from Witte. To his knowledge, this is the first time that the de facto 72-hour rule has been challenged, Mitros added.
The letter also calls into question state-mandated detention basins that are required to ensure water quality, Mitros said.
According to the letter, those kinds of basins are also in violation of junior water rights.
Springer said CUSP cannot afford to buy extra water rights to make up for what its basins hold.
In Colorado, “water is more valuable than gold,” Mitros joked.
Witte said he is protecting the water rights of those who live in a drought-stricken watershed. The basins have no right to hold water, particularly from junior water rights holders who depend on excess water.
“They are among those who are entitled to receive water when there is a shortage, and there is always a shortage,” Witte said.
There are a variety of fixes for the situation, Witte said, but none strikes a perfect balance between the needs of recovery managers and junior water rights holders, he added.
“The ponds could be filled in, but that doesn’t afford any flood protection. Not every solution is a satisfactory one for everybody,” he said.
The most typical solution would be for agencies like CUSP and Colorado Springs Utilities, among several others, to purchase water rights. While it might be the simplest solution for Witte, buying more water would be expensive and probably not feasible for others, Mitros said.
“There is no water available to purchase to offset that,” Springer said. “We are in the business of saving lives. Why would we spend the money to buy that water?”
Now everything depends on the outcome of [SB15-212: Storm Water Facilities Not Injure Water Rights], which is expected to be heard in the Senate’s Agriculture, Natural Resources and Energy committee April 9.
Sonnenberg could not be reached for comment Tuesday.
Although Witte requested that action be taken by April 1, he said he will wait to act until the legislative session is over. CUSP, along with the city of Colorado Springs, the U.S. Forest Service and Colorado Springs Utilities, will also be waiting to see if the bill passes.
As for what will happen if the bill gets killed, no one had a guess.
“I don’t know what will happen,” Mitros said. “I think the state needs to get that figured out between itself first.”