The Haxtun-Fleming Herald - What can we reason but from what we know? -Alexander Pope

Should illegal ponds be tapped to combat wildfires? A month ago, the answer was a clear “yes,” but when Senate Bill 114 came to the House Agriculture, Livestock and Water Committee last week, it wasn’t so clear. The bill is now raising questions from those with water rights in the South Platte about its impact on compact compliance and court orders.

SB 114 would require county commissioners to apply to the state engineer to have certain ponds designated for wildfire suppression.

Those ponds must be accessible to firefighters, if it’s in an area without fire hydrants or other water, that it was in existence as of Jan. 1, 1975; in an area identified as at high risk for wildfires; and that the pond is no larger than six surface acres.

The State engineer is currently working to drain ponds that are out of priority; that is, that those ponds were dug without legally adjudicated water rights and could impact the water rights of others. In the Arkansas Valley, there are more than 10,000 illegal ponds targeted for draining. Most of those ponds are less than an acre, according to Terry Scanga, manager of the Upper Arkansas Water Conservancy District.

The problem came to light from a situation in Park County but sponsor Representative Marc Catlin, R-Montrose, said it’s not a one-county issue and it’s one raised by Colorado Counties, Inc., which represents 62 of the State’s 64 counties.

It took two months for the bill to clear the Senate, Catlin pointed out, due to the extensive amount of work needed to address concerns.

Joan Turner Green, representing the water rights of the South Platte, including irrigation companies, conservancy districts, two municipalities and ditch companies, told the committee her organization supports the concept of the bill but are seeking amendments.

Their concerns include the bill’s language that indicates State governments would allow local governments to lock up water without using eminent domain, raising questions about whether this would raise a “public trust” concept. 

Turner Green pointed out that the way the bill is written, the State engineer won’t issue orders for draining. But if it’s a compact issue or with a court order in place, in those situations, the State engineer must enforce those obligations, she said. 

“Everyone’s looking at the state of Colorado,” especially Nebraska, and the bill needs to make it clear the engineer can do his work on compact compliance and state orders, she told the committee. The bill also doesn’t consider the depth of the pond, she said.

Turner Green noted conflicts in the bill’s language around decreed storage rights and a lack of clarity on communication by the local government to the pond owner. “You’re turning water law on its head with this,” she said. “Instead of the burden of proof being on the people making the change, it will be on the people being injured.” 

Deputy State Engineer Tracy Kotzloff said that they don’t have a position on the bill, but if the legislature wants to add an exemption to the State’s system on priority water rights, they can do that. 

Kotzloff, in response to a question from Rep. Rod Pelton, R-Cheyenne Wells, said the bill would not impair the state engineer’s ability to regulate water for compact compliance. 

The bill also says that if the state engineer reviews an application from the county and the pond meets all the requirements, the State engineer can designate the pond for wildfires as well as other purposes, such as compact compliance, she said.

The counties have a lot of responsibility in this process, Kotzloff said, and will have to compare those ponds to the fire criteria once rulemaking is in place. The counties would be the applicants, not the pond owner. 

Turner Green said the bill does create an exemption to the prior appropriation system, but the concern of her clients is whether the illegal ponds can retain their water if a compact call is issued. 

While the bill allows the state engineer to order a pond drained for dam safety, she reiterated her request for an amendment to say the state engineer can also drain for compact compliance and court orders. The history of the South Platte includes times when the State engineer allowed for wells to be dug, taking water away from senior water rights and that led to the 2002 Empire Lodge case, she explained.

Since the ponds will stay at the same level, that raises questions about how those ponds are being refilled. No engineering study has been done to determine how those ponds are being refilled, she said. 

Kotzloff said that there’s an allowance for up to 30 acres per county in the bill. That’s about two to three feet per acre per pond. It’s the same amount of water as one would see on a 30-acre irrigated field, she explained. 

The bill does not create a water right for a fire suppression pond, she added, but said some of the ponds in Park County do have water rights for non-consumptive uses, such as wildlife watering. 

Those ponds, even with water rights, do not have to comply with their court decrees, Turner Green countered. The bill allows fire districts to buy augmentation water, but they don’t have the money for that and she suggested that money should come from the Colorado Water Conservation Board. 

Commissioner Greg Felt of Chaffee County, who sits on several water boards, said maybe one to two percent of the ponds in the Upper Arkansas would be subject to curtailment or augmentation and allowed to continue as fire suppression ponds. This says nothing about future ponds, given the bill’s language that the pond must be in existence for nearly 50 years, he pointed out.

The State engineer is working to get the water back to the rightful owners and to ensure compact compliance, he said. Allowing for a few of these carefully designated ponds, in conjunction with the state engineer’s office, is a reasonable compromise, Felt added.

Daphne Jervais of Colorado Counties, Inc. addressed several concerns. “We’ve heard the bill sets a precedent,” but the statute already allows some exemptions in the prior appropriation system, including for fire suppression. Exemptions beyond the well exemption are needed, she said.

There have also been concerns that counties don’t have the expertise to look at the water issues; in the bill, the county needs assessment would only look at fire suppression; the water issues would remain with the state engineer, Jervais said. 

Potential injury is limited with SB 114 through a cap on the size of the pond and the total acres per county. It also gives the water rights owners an opportunity to petition the water court to submit evidence of injury, she said. “Every pond does create injury, because water evaporates,” she said. If the pond goes through the process, and the state engineer does designate it, there is a presumption of no injury, but that can be challenged in water court, she explained.

Kanga, of the Upper Arkansas, said that given that so many ponds are less than an acre, that the bill pertains to select certain ponds, up to six acres per pond or 30 acres per county, is huge. Kanga opposes the bill as written.

The East Troublesome in Grand County caused devastating losses to Northern Water Conservancy District, said water attorney Peggy Montano. Grand County is the source of water for Northern Water, she said. “We’ve had to try to recover from that fire; whether you like it or not, fire comes.” The district has spent tens of millions to recover its watershed, which includes repairing roads and bridges and clearing debris that block access to infrastructure, such as tunnels. Millions more will be spent to mulch thousands of acres of land to keep it out of the reservoirs, she said. Northern Water and its municipal subdistricts support the bill, she added.

SB 114 was amended with technical language and did not address the concerns raised by the South Platte. However, bill sponsor Rep. Dylan Roberts, D-Eagle pledged to continue the conversation on compact compliance as well as conflicts in the bill. 

SB 114 now goes to the House Appropriations Committee. 

Finally, the 2022-23 budget is now awaiting action from Governor Jared Polis, after a conference committee resolved differences between the House and Senate versions.

The Senate had added $731 million in spending, including a half-billion dollars to boost teacher pay and to pay down the debt to K-12, but that amendment wasn’t expected to stay on the bill, and it didn’t.

In the end, only about $5.5 million in new spending stayed on House Bill 1329, including money for a Beef Sticks for Backpacks program for Colorado State University, money for mental health programs tied to the Department of Agriculture, a boost in funding for the Colorado Ag Leadership Program.

  The budget, at $36.4 billion, is about $2 billion higher than in 2021-22.