The Animas River flows through Durango’s Whitewater Park. As the city is preparing to negotiate over its application for recreational in-channel diversions, a discussion is surfacing in the Legislature over whether to allow condemnation of nonconsuptive water rights, such as RICDs./Photo by David Halterman

by Missy Votel

The Colorado State Legislature adjourned for the summer last week, but one unresolved bill that stirred the waters of debate, locally and statewide, is likely to resurface next session.

House Bill 1036, also known as the Limit Acquire Eminent Domain bill, died in the final days of the session when its counterpart bill in the senate failed to pass. The bill, sponsored by Rep. Jerry Sonnenberg, R-Sterling, and Sen. Brandon Shaffer, D-Longmont, would have prevented governmental bodies from using powers of eminent domain to codemn water rights.

“Eminent domain should be used as a necessity and not as a convenience,” Sonnenberg, a farmer, told the Telluride Watch in February. “It’s getting to the point where we must do something to ensure that condemnation is not used as the path of least resistance.”

The House passed Sonnenberg’s bill Feb. 26 with a 34-30 vote, despite objections from the Colorado Municipal League and the Denver Water Board, who claimed the bill was unconstitutional. In early April, the Senate passed its watered-down version of the bill that called only for a study of the issue by the state’s interim Water Resources Review Committee. However, that compromise was unacceptable to Sonnenberg, who promised to “be back next year.”

Sonnenberg and other bill proponents fear that with increased growth and continuing drought, there could come a day when Colorado’s cities may need to use eminent domain to get drinking water. This could be a threat to the state’s agricultural interest, who hold the rights to about 85 percent of Colorado’s water

However, Sen. Jim Isgar, D-Hesperus, who also is a rancher, had a differing view. Isgar , who is the chair of the Senate Agriculture, Natural Resources and Energy committee, said he had problems with the bill on a few levels. For starters, he said the bill was addressing what was basically a non-issue. “People are sympathetic about big municipalities going after people’s water rights, but the reality is, it just doesn’t happen. The power of eminent domain hasn’t been abused,” he said. “Sometimes when you try to fix a problem that doesn’t exist, you end up creating even more problems.”

However, this isn’t to say that the issue of water rights condemnation will never arise, he added. If and when that fateful day arrives, Isgar said the bill could hamstring Colorado municipalities. “Because of drought, we have significant issues in several basins,” he said. “Possibly one tool they would need would be condemnation. Some of us were uncomfortable taking this tool away.”

Although the bill failed to advance, Isgar, who is the chair of the Senate committee on Agriculture, Natural Resources and Energy, said it is quite possible his group will study the issue over the summer. “It will be on our agenda this summer,” he said. “The issue is not going away.”

Meanwhile, local and state conservation groups are breathing a temporary sigh of relief at the death of the bill. However, like Isgar they expect the topic to re-emerge.

“It’s just gone for now,” said Chuck Wanner, water issues coordinator for the San Juan Citizens Alliance, “but the general question will come up again.”

Wanner said his group was strongly opposed to discussion surrounding an amendment to the bill that would have allowed for condemnation of non-consumptive water rights, such as those for recreation, in-stream flows and hydropower. “Basically, it would have created ‘second-class’ water rights,” he said. “If the subject comes back up again, I’m sure we’ll be interested.”

The issue of a two-tiered water rights system is also one being watched closely by the local and state chapter of Trout Unlimited.

“There are healthy fisheries that are that way because of hydropower or privately held in-stream flows,” said Buck Skillen, of the Five Rivers Chapter of Trout Unlimited. “If condemnation was used somewhere else in the state, we could be faced with fighting that battle down here, too.”

Colorado Trout Unlimited Executive Director Dave Nickum said his group did not have a problem with the original bill but with the proposed amendment. “It seems to be putting a target on non-consumptive water rights, almost giving encouragement to condemn them, if you will,” he said.

Such an amendment could have devastating effects, particularly on the popular Shoshone stretch of the Colorado River, which is supplied by a hydropower plant upstream. It also could jeopardize the Taylor River, a popular trout fishery near Gunnison which has many private in-stream flows. Aside from environmental impacts, such an amendment could have detrimental

effects on local economies, as well, he said. “In-stream flows benefit the river and the economy,” he said. “A lot of folks have built their lives and businesses around it.”

As of now, Isgar said that any discussion of such an amendment was purely that. “There was talk about eliminating non-consumptive uses from the bill, but no official wording was ever added,” he said.

However, like a trout on a lazy summer evening, Nickum said he expects the issue to rise again. “These things have a way of coming back,” he said. “We’ll definitely be keeping our eyes on it.” •