Colorado lawmakers aim to bolster water protections for electric utilities, others

Lawmakers aim to amp up protections for water used by Colorado’s largest electric utilities with a broadly supported bill based on recommendations from water experts around the state.

Senate Bill 197 would help electric utilities hold onto water rights that could otherwise be declared “abandoned” as the state transitions to clean energy. It would also enhance protections for environmental and agricultural water, and ease access to funding for tribes.

The bill grew out of water policy recommendations developed by the Colorado River Drought Task Force in 2023. The bill, which passed with bipartisan support, is the legislature’s main effort this year to address those recommendations — and to help Colorado address its uncertain water future. Polis has until June 7 to sign the bill, allow it to become law without his endorsement, or veto it.

“Senate Bill 197, and the changes contained in that bill, would not have happened if the task force hadn’t met and done the work to talk about it,” said Sen. Dylan Roberts of Summit County, who co-sponsored the bill.

Lawmakers created the Colorado River Drought Task Force to help guide the state’s response to its water woes.

The Southwestern U.S. endured the driest 22-year period in 1,200 years starting in 2000. The Colorado River Basin’s immense reservoirs have dropped to historic lows. In Colorado, the average yearly temperature has increased 2 degrees in the last 30 years. Its cities, towns and industries could be short 230,000 acre-feet to 740,000 acre-feet by 2050.

One acre-foot roughly equals nearly 326,000 gallons, enough to serve at least two to three households in a year.

The 17-member task force met for weeks in 2023, facing early concerns about a slower-than-desired start. Members traveled all over the state and gathered public comment on how to protect the Colorado River and other state water interests. The group released 24 recommendations for new water policies and programs in December.

One recommendation, aimed at prohibiting the installation of nonfunctional turf — grass that is not used primarily for recreational purposes — has already been signed into law by Polis. Turf replacement is popular across the state and a valuable water conservation effort that will need continued funding in the future, Roberts said.

Another offered by the sub-task force focused on tribal affairs, became a legislative resolution calling on Congress to fund a deteriorating irrigation system in southwest Colorado.

“That often doesn’t happen quickly, so we’ll have to be persistent in that effort, I’m sure,” Roberts said.

Protecting electric utilities

Colorado electric utilities are shutting down coal-fired power plants in response to the state’s transition to 100% clean electricity generation by 2040 — a process that puts their water rights at risk.

These power plants use water to produce steam to run power generators and for cooling, which means electric utilities have over time amassed large portfolios of water rights. Under Colorado water law, if that water is not used consistently over a period of time, then it could be declared “abandoned.” At that point, the utility could lose access to the water entirely.

Electric utilities want to hold onto those rights as they transition to other technologies that use water, said Jackie Brown, senior water and natural resource policy advisor for Tri-State Generation and Transmission Association.

This bill protects the electric utilities’ water from abandonment until 2050. Utilities would face limitations, like not being able to sell water out of state.

“If we didn’t have this [protection], we would be consistently fighting to maintain that amount of water, and there is zero certainty that we would win that fight,” Brown said.

The unused water would remain in rivers and streams to be used by downstream farmers, ranchers, cities and other water users.

“This keeps the status quo. Ranchers and other water users are used to the way we use water,” Brown said. “During that period of time where we’re researching, it helps the community.”

Adding more flexibility for water, funding

Senate Bill 197, one of 10 water measures passed this year, also tackles three other recommendations made by the task force.

The bill would allow the Colorado Water Conservation Board, a state water agency, to waive or reduce matching fund requirements for water grants for the Southern Ute Indian Tribe and Ute Mountain Ute Indian Tribe, both of which have reservation land in Colorado. Challenges accessing those funds was a key issue that came up during task force discussions.

It would also expand the state’s instream flow program, which keeps water in rivers to help the environment especially when water levels drop in the late summer.

Water users — like a farmer or utility company — that own rights to water stored in reservoirs could temporarily loan their supply to the state to boost the flow in a stretch of a river where there is not an existing instream flow right. (The loan would still go through extensive review processes with the state.)

The proposed change will offer more flexibility on where in Colorado a temporary loan could be made, experts said.

“This could be a tool that we could propose to the owner of a storage water right: ‘Here’s something that you could do if you want to restore flows in your stream,’” said Josh Boissevain, a staff attorney for the Colorado Water Trust which works closely with the instream flow program.

Farmers, ranchers and irrigation water rights owners would also have more flexibility to loan their water to non-irrigators, like cities and towns, for temporary, compensated use under the bill — without having to permanently change the decreed water right or lose access to their water.

“The idea was, if you can create more temporary loan opportunities, that reduces the incentive to permanently change agricultural water rights to municipal use,” said Kelly Romero-Heaney, assistant director for water policy for the state Department of Natural Resources.

There were some concepts on which the task force did not reach consensus, like how to save water within Colorado to send out of state in order to comply with interstate water-sharing obligations — like those with other states in the Colorado River Basin — a concept called demand management.

The changes in the bill are incremental, but significant, and there is plenty that still needs to be discussed, said Zane Kessler, director of government relations for the Colorado River District.

“Sometimes water legislation, like water projects, works in water time — which is not always super expeditious,” he said. “That’s by design, right? This is a resource that we all depend on. Being thoughtful … taking our time is, I don’t think, ever a bad thing.”

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