May 9, 2014--Potential for harm: Opponents of Senate Bill 23 express concern about upstream water users (Steamboat Today)

Senate Bill 23, which recently passed the Colorado Legislature, aims to provide incentives for agricultural water users and irrigators on the Western Slope to make their operations more efficient, but some opposed the bill on the grounds that it has the potential to harm others’ water rights. The bill would allow water rights holders who implement efficiencies to transfer the savings to the Colorado Water Conservation Board for an instream flow, which is a beneficial use that keeps the water in the stream. The first major objection of opponents of the bill is the potential for intervening water rights holders (those between the point of diversion and the historical return flow of the water right holder who wants to transfer) to be harmed through the process or face significant costs to ensure they are not. The other, and perhaps more fundamental, concern opponents of Senate Bill 23 have raised is the potential harm to upstream water rights junior, or lesser in priority, of any transfer to the CWCB. When water in a given stream isn’t used, whether informally or after it has been considered abandoned, upstream water rights holders can use some of that water. “Non-use of a senior right aids the junior,” said Tom Sharp, a Steamboat attorney with expertise in water law. With Senate Bill 23, any transfer to the CWCB for instream flow use will carry the same date of the original water right, creating the potential for some senior instream water rights that would have priority over upstream junior water rights. “If there’s no call for water for instream flow use, nothing’s going to prevent them from diverting,” Division 6 engineer Erin Light said about upstream junior rights using water that’s either not being used or has been abandoned. However, in the event that there is a call on the stream, a junior rights holder might have to watch water flow by to satisfy a CWCB instream use. A senior right issues a call to ensure the full, decreed amount of water is delivered. The CWCB is the only entity that can hold a right for an instream use.

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