Water legislation stays on front burner

By Marianne Goodland
State Capitol Correspondent

A bill that would allow illegal ponds to remain undrained in order for the water to be used for wildfire suppression got its first hearing in the past week in the Senate Agriculture and Natural Resources Committee.
Senate Bill 114 would allow those ponds to remain, given that the alternative is that they be ordered drained by the state engineer, since they’re unpermitted.
The bill only applies to ponds that can be accessed by firefighting vehicles; those that don’t have that access could still be ordered drained, Sen. Dennis Hisey, R-Colorado Springs told this reporter.
The number of unpermitted ponds across the state is unknown, but there are at least 10,000 just in the Arkansas River basin, according to the state engineer. The state Division of Water Resources started an initiative in 2021 to identify and drain unpermitted ponds. The Arkansas River basin was targeted first, but the state engineer is “systematically reviewing ponds in several areas of Colorado where ponds without legal authorization have a substantial impact on the stream system.:
The problem appears to be most acute in the state’s eight groundwater basins, all of which are on the Eastern Plains and include the Ogallala aquifer on the northeastern plains.
“This bill does not save everyone’s backyard pond. It does not allow people to dig new ponds because they want water near their house,” said bill sponsor Hisey.
This is about wildfire-fighting ponds and saving ponds that can prevent wildfires, Hisey said during the Feb. 17 hearing. The ponds are fairly small, and used to put out structure fires, such as a house, a barn or shed – small fires started by lightning strikes, for example, Hisey explained. 
Hisey added that these ponds are useful, to the degree that they must meet certain standards for fire departments, especially rural, volunteer departments, and once they run out of water from the thousand-gallon tank they need more; these ponds are the nearest source of water.
These are not ponds that an airplane or helicopter would draw water from, he said.
The state engineer is in the process of identifying man-made ponds filled out of priority and are ordering them filled, Hisey said. Fire chiefs have said when there’s water, “I’m taking it and figuring it out later,” and this will eliminate the “figuring it out later” problem.
Fire Adapt Bailey, out of Park County, came up with the idea of allowing those ponds to be used for fire suppression, Hisey said. It’s an area ripe for a wildfire disaster, he added.
The group evaluated area ponds for firefighting potential and found eight out of 30 that would fit the requirements of the bill, Hisey said. “We need a process for other counties” to do this.
The bill’s co-sponsor, Sen. Tammy Story, D-Evergreen, said the bill has the backing of Colorado Counties, Inc., which represents 61 counties in Colorado. “These ponds are often all [fire departments] have in the event of a fire.” Story’s district includes Marshall, the site of the state’s worst wildfire in December, in terms of loss of homes and other buildings.
To live in a community that has no resources other than these ponds, it’s crucial to save them for fire suppression, she said.
The bill does not create a free pass on water rights, Story added.
Under the bill, county commissioners would apply to the state engineer to designate a pond as a fire suppression pond. The ponds must be inspected annually by the county and fire suppression district.
The bill was heavily amended during the committee hearing, to set minimum requirements for fire suppression ponds, and that they cannot have other substantial consumptive use. Hisey said additional amendments are likely, based on concerns raised by Denver Water.
Richard Vidmar, a water resources manager with Aurora Water, said it is in the utility’s interests to support existing ponds in rural areas for firefighting. Their water supply comes from watersheds in three major water basins, he said, and in the public interest to identify critical fire suppression ponds. “Approved fire suppression ponds will continue to protect our watersheds and the determination process will protect our water rights and processes,” Vidmar told the committee.
Due to the need for work on additional amendments, the committee postponed action on the bill to a later, to be determined, date.
The bill to set up a fund to finance groundwater reductions in the Republican River and Rio Grande basin won unanimous support from the state Senate on Feb. 17.
Senate Bill 28, sponsored by Sens. Jerry Sonnenberg, R-Sterling and Cleave Simpson, R-Alamosa, could help pay for retiring irrigation wells and/or reducing irrigated acreage in the two river basin areas.
The groundwater issue on the Republican is compact compliance with Nebraska and Kansas, according to David Robbins, the general counsel for both the Rio Grande and Republican River conservation districts. Colorado agreed to withdraw 25,000 acres by 2029 on the Republican under a three-state resolution signed in 2016. Despite already spending $100 million, the district is having a terrible time meeting the state-mandated responsibility, Robbins said during a recent Senate ag committee hearing on the bill.
Funding for the grant program has not yet been settled on; it ranges from $50 million to $150 million, depending on who’s asking. The money would come from American Rescue Plan Act dollars provided to the state.
Simpson told the Senate on Feb. 15 that there are unique challenges on the Republican and Rio Grande river basins. “Mother Nature has not been very kind to us over the last 20 years,” Simpson said, of drought and low precipitation in the Rio Grande. Simpson said the fund might not solve the problem but “it will certainly move us further in the direction of compact compliance and statutory requirements.”
Sonnenberg is also the sponsor of a bill up for a hearing in the Senate ag committee this week, on telling the Colorado Water Conservation Board to make storage on the South Platte a priority for funding from its construction fund.
However, Sonnenberg said the bill, which is scheduled for a Feb. 24 hearing, will be substantially amended to address objections from Gov. Jared Polis.
The amendment changes the bill’s legislative declaration. In its introduced version, the bill says, “it is of the utmost importance for Colorado to increase the beneficial consumptive use of the undeveloped waters of the state that are subject to compact compliance obligations; by storing undeveloped waters of the state, Colorado can allocate more water for the state’s increasing water demands in a manner that reduces reliance on transmountain diversions.” The declaration specifically mentions the South Platte River basin.
Those undeveloped waters include the 350,000 acre-feet over and above compact requirements and that leaves Colorado through the South Platte every year and flows into Nebraska.
Among the water projects in discussion on the South Platte: a new 4,000 acre-foot reservoir in Logan County and a new 72,000 acre-foot reservoir near Fremont Buttes, in between Brush and Akron. Both projects are a partnership between the Lower South Platte Water Conservancy District and the town of Parker, in Douglas County.
The amendment on Senate Bill 126 would replace the legislative declaration, striking the reference to the South Platte and simply stating that “as a headwaters state, all of Colorado’s major rivers flow downstream to 18 states and Mexico. Coloradans recognize that each river basin in the state is unique, but that all are vital to the viability of the state’s overall economy and way of life…Colorado will protect and defend its water rights throughout the state and preserve Colorado’s interstate compact entitlements, agreements, and decrees.”
Current law says that first priority for the money available to the CWCB construction fund is to go to projects that increase beneficial consumptive use of undeveloped compact-entitled waters. The amendment strikes the language that would make South Platte storage a top priority, but includes South Platte storage as a project that would increase that beneficial use.