By John Sittler, Esq.

The Colorado Drought Task Force, created through Senate Bill 295 last May, recently released its first report summarizing its internal and stakeholder meetings and outlining a set of 12 recommendations to:

. . .address drought in the Colorado River Basin and ensure the state can meet its interstate commitments related to the Colorado River and its tributaries.

The Task Force noted that these recommendations are preliminary and there is still much work to do, particularly considering that the committee could not agree on several larger measures.

Background

The Colorado General Assembly created the Drought Task Force through near unanimous passage of Senate Bill 23-295, which the Governor signed on May 17, 2023. The stated goal of the Task Force is to:

. . .develop programs that address drought in the Colorado River basin and interstate commitments related to the Colorado River and its tributaries through the implementation of demand reduction projects and the voluntary and compensated conservation of the waters of the Colorado River and its tributaries. C.R.S. § 37-98-105(4)(a).

The Task Force is comprised of 17 members representing a wide variety of industrial, agricultural, municipal, and conservation interests. SB 295 also created a five-member Sub-Task Force to address tribal matters, which included representatives from the Ute Mountain Ute and Southern Ute tribes.

The Drought Task Force met ten times between July and December 2023, including both in-person and virtual meetings. All meetings were open to the public and also recorded and made available online. More than 1,500 members of the public attended a meeting or viewed the online recording, and collectively submitted almost 100 comments. The Sub-Task Force met six times between September and December 2023.

Task Force Recommendations

The Task Force’s report recommended eight legislative actions for the Colorado General Assembly:

• Continued funding of the Technical Assistance Grant program. The demand for these grants often exceeds available funds.

• Increased funding for aging water-related infrastructure, including diversion structures, headgates, and conveyance efficiency improvements.

• Prioritization of forest health and watersheds, including state funding for Community Wildfire Protection Plans.

• Expansion of the instream flow program to allow owners of storage water rights (reservoirs) to temporarily loan those rights to the Colorado Water Conservation Board (CWCB) to improve the natural environment.

• Expansion of the Agricultural Water Rights Protection program beyond Division 1 and 2 (South Platte and Arkansas basins). This program allows irrigators to make their water temporarily available for other uses, while keeping the historic agricultural use of the water. The Task Force recommend this program be expanded state-wide.

• Continued funding of state-wide measurement tools, including streamflow measurement and snowpack measurement using LiDAR.

• Increased funding to remove invasive phreatophytes and other species (noxious weeds) to improve riparian ecosystem health. Increased funding of $5 million per year for the Turf Removal Program. This program began in 2023 and provides financial incentives to replace irrigated turf with less water-intensive landscaping. The CWCB estimates that 40 percent of Colorado’s municipal and industrial water use is consumed through outdoor irrigation.

Sub-Task Force Recommendations

The Sub-Task Force exclusively focused on tribal matters and made the following recommendations:

•Provide funding to Ute Mountain Ute and Southern Ute Tribes to analyze pilot programs to compensate Tribes for future forbearance of water development. Indian Tribes own “federal reserved water rights” under, among other cases, Winters v. United States, 207 U.S. 564 (1908). These water rights existed by necessity at the time a reservation was created. The exact extent of these rights is unclear, but to the extent tribes wished to assert these rights in the future these rights could affect physical supplies in the Colorado River Basin. The Sub-Task Force recommendation envisions a program under which the tribes voluntarily agree not to develop these rights in exchange for financial compensation.

•Request a letter of support from the General Assembly and Governor Polis to Congress requesting full appropriation of the $35 million authorized for the Indian Irrigation Fund under the federal Water Infrastructure Improvements for the Nation Act (WIIN Act).

•Allow CWCB to waive the matching requirement for Water Plan Implementation Grants. The CWCB currently has a statutory requirement of at least a 25 percent match to disburse certain grants. The Sub-Task Force recommended that the General Assembly remove that requirement vis-à-vis tribes to allow them to access this state funding more easily.

•Support of the Ute Mountain Ute tribe’s request to include cultural values in the state instream flow program. Currently, the CWCB may appropriate instream flow rights to protect the natural environment. The Sub-Task Force agreed with the Ute Mountain Ute’s proposal to explore options and mechanisms to expand the instream flow definition to allow appropriations in support of cultural, specifically tribal culture, values.

Interstate Conserved Consumptive Use Programs

The Task Force failed to reach a recommendation on one of its primary issues: conservated consumptive use programs. These programs, also called demand management, essentially pay irrigators to not divert in a given year to leave more water in the river. The Task Force agreed that any program must be temporary, voluntary, and compensated, and must avoid disproportionate impacts to any one region and avoid injuring nonparticipating water rights holders (a/k/a Put Colorado First and Do No Harm). However, the Task Force ultimately voted nine to seven against offering any recommendations. The no votes came from Front Range water providers, the Departments of Natural Resources and Agriculture, the Southwest Water Conservancy District, and the two Indian Tribes. Many Task Force members noted that there simply wasn’t enough time for the committee to fully analyze, debate, and consider this issue before coming to an agreement. Most members agree that further discussion is needed, and that some type of demand management program will likely be beneficial to Colorado’s water goals. Opponents of the recommendation believed the discussion was premature, while others said that demand management programs could weaken Colorado’s negotiating position with other states and that the focus should be on Lower Basin overuse, not on reducing usage in Colorado.

Conclusion and Implications

The Task Force’s Report, and recommendations to combat increasing drought in Colorado, were highlighted recently with the upper Colorado River Basin Snow Water Equivalent. On January 1, 2024 the Colorado River headwaters were at 75 percent of normal. The only other years with this low a level on January 1 were 2018, 2012, 2002, and 1990, historically bad water years.

SB 295 created the Task Force with the charge to produce a report by the end of 2023, which it accomplished. However, the Task Force could not reach agreement on several main issues, and also highlighted many other “narratives” which it discussed but did not formally vote on. The Colorado General Assembly now has the task of acting on any of the Task Force and Sub-Task Force’s recommendations, or potentially re-authorizing the two committees to continue their work. Regardless of the direction the legislature chooses, it is clear that the issues will continue to persist in an ever-drying west.