Colorado’s 19th century water laws — which often encourage wasteful use of the West’s most precious resource — took a major step into the modern era this week as Gov. Bill Ritter signed a bill that allows users to leave part or all of their water in a river without losing their rights to the liquid gold.
House Bill 1280, by Rep. Randy Fischer, D-Fort Collins, and Sen. Gail Schwartz, D-Snowmass Village, allows farmers, ranchers and other water users to lease or loan some or all of their water rights to the Colorado Water Conservation Board to maintain instream flows or otherwise safeguard our environment — without losing their rights to the future use of that water.
The new law is such an obvious exercise in common sense that most Coloradans probably assumed that’s the way our water law has always worked. Sadly, that’s not the case.
In Colorado and most of the West, water law works on two key principles:
• First in use, first in right; and
• Use it or lose it.
The first rule means that if your ancestors started drawing 100 acre-feet of water per year for their farm in 1887 and your neighbor started drawing the same amount in 1901, your rights are “senior” to his. In a dry year during which the stream generated only 125 acre-feet, that means your neighbor, even if his farm was upstream from yours, would have to let you use your 100 acre-feet historical allotment while he could draw only the 25 acre-feet remaining.
Suppose, however, that you stopped irrigating for 10 years, then resumed watering your fields. Your hiatus might trigger the “use it or lose it” rule. In that case, your neighbor’s rights could become senior to yours — meaning he could draw the 100 acre-feet he wants first while you have to settle for whatever is left.
The use it or lose it rule is designed to discourage speculators from filing for water rights they don’t actually use, which is why the law requires that water be put to “beneficial use” to maintain rights.
Unfortunately, in the 19th century, leaving water in a stream to benefit fish and wildlife wasn’t considered a “beneficial use.” Thus, irrigators were encouraged to dry up streams entirely, with disastrous effects on the environment.
The Water Conservation Board has been trying to exercise better stewardship over Colorado’s rivers by leasing water rights to maintain minimum stream flows to benefit anglers, rafters and other recreational users. But its efforts have been hindered by the fear that public-spirited farmers and ranchers who leased their water for such purposes might lose their rights in future years because maintaining in-stream flows isn’t considered the same kind of “beneficial use” that growing alfalfa is. That fear vanished when Ritter signed HB 1280 into law.
The governor and his allies in the environmental community can take pride in this far-sighted reform.
