The 2023 Colorado lawmaking session was one of “incremental steps” on water issues, which means Coloradans have to wait until next year to see if legislators can find policy solutions to key water security questions.
Colorado, like the six other Western states in the Colorado River Basin, is facing an uncertain water future as a two-decade drought and overuse threaten the basin’s water supply. This year, state officials started the 120-day lawmaking session saying water was going to be the “centerpiece” of Democratic environmental policy.
But as lawmakers debated more than 600 bills, water issues fell by the wayside as topics like housing, gun control and abortion took center stage. Fewer than 20 bills specifically addressed water issues, although several other bills could have indirectly impacted the state’s water system. Of the 16 water-focused bills, one directly addressed Colorado River issues by creating a Colorado River drought task force that has six months to debate solutions and make a recommendation to lawmakers in December.
Of a dozen lawmakers and Colorado water experts interviewed by The Colorado Sun, almost all supported the task force measure, even if some said the overall scope of the bills that were introduced wasn’t as big as promised early in the session. Others weren’t sure the task force would have any impact at all.
“In general 2023 ended up being a session where there were incremental steps taken towards addressing the big water and river challenges that we have, but that a lot more needs to be done,” said Bart Miller, healthy rivers director at Western Resource Advocates. “The good news is the bills that made it through this year do set us up for that. They are good stepping stones towards the bigger needs.”
The Colorado River Basin provides water to 40 million people in Colorado, New Mexico, Utah, Wyoming, Arizona, California and Nevada. In Colorado, the river’s headwaters flow through the Western Slope and some of its water is transferred to the Front Range and Eastern Plains to reach farmers, cities and households there.
But water stored in the basin’s reservoirs reached crisis levels in recent years, and the river’s water supply is diminishing. Atmospheric warming has caused streamflows to decrease by 20% over the past century, and the hotter the atmosphere gets, the more water is lost, according to research from the U.S. Geological Survey and the 2023 Colorado Water Plan. In Colorado, the average yearly temperature has increased 2 degrees in the past 30 years.
In January, Speaker Julie McCluskie, D-Dillon, and Colorado Gov. Jared Polis highlighted water security as a key issue facing Coloradans. In his State of the State address Jan. 19, Polis said increased demand, chronic and extreme drought, conflicts with other states and devastating climate events are threatening critical water infrastructure.
“I think we were all expecting sort of an onslaught of a lot of water issues and water bills up front,” said Steve Wolff, general manager of the Southwestern Water Conservation District. “Didn’t really see that. I think the few we’ve seen for the most part came late in the session.”
What did and didn’t change this session
Coloradans can expect a few changes from water legislation this session, although several bills still await Polis’ signature.
The legislature approved $95 million in funding for local water-related projects in one bill and, in another, clarified the approval process for minor streamflow restoration projects while considering possible impacts on downstream water users. A third measure made it even easier for homeowners to xeriscape their lawns with water-saving options by further cutting homeowners association powers over landscaping. All three of those bills are on the governor’s desk.
Residents of manufactured housing communities would benefit from a new water quality testing program established this year under another bill awaiting Polis’ approval. Wastewater treatment operators might be glad to hear that nondissolvable wipes, which can cause mayhem when they clog up pipes, will clearly be labeled “Do Not Flush.”
Other issues remain to be addressed, like how water needs will be addressed in land use planning since this year’s controversial land use measure failed.
“Finding a way for us to think more holistically about urban growth from both a land, a housing and a water perspective is something that I was disappointed didn’t move forward this year,” said Aaron Citron, senior policy advisor at The Nature Conservancy. “I think we’re all kind of waiting to see what the next steps are going to be with that land use package, but I hope that water element continues to be a part of the conversation.”
After months of debate over solutions to Colorado River challenges, legislators settled on continuing the conversation with focused input from stakeholders through the Colorado River drought task force, which was introduced in April, weeks before the session ended Monday.
The group will include industry, agricultural and water conservation district representatives, along with state officials from the Colorado Department of Natural Resources. Both Native American tribes with land in Colorado, the Southern Ute and Ute Mountain Ute tribes, will have seats on the board, as will a cross-section of water users from around the state.
Days after the session’s end, some experts felt like creating the task force was the right step, but others weren’t so sure.
“(It would) hopefully stimulate some conversation and some innovative thoughts and ideas about how Colorado deals in this challenging time and space with dwindling supplies and ever-increasing demand,” said Sen. Cleave Simpson, an Alamosa Republican.
Daniel Beard, a former Bureau of Reclamation commissioner, said he was “baffled” that legislators view the task force as a great accomplishment or expect the members of the group to come up with a solution in a few months when Colorado River issues have been heavily debated for years. What’s needed is the political will to take politically painful actions, he said.
“Have you ever met a successful politician that stood up and said I’ll take all the pain? No,” Beard said. “They’re creating a body to come forward with some recommendations and then they can hide behind the results. So if they do something controversial, they (the legislators) can say, it wasn’t my fault, I was just following the recommendations of the commission.”
What water experts say about the drought task force
The drought task force is a 15-member panel that will meet from July to December to discuss Colorado River drought issues and provide policy suggestions to legislators before the 2024 session begins. At that point, senators and representatives can decide to listen — or not — to the committee’s recommendations. The bill had not been signed into law by Polis as of Wednesday.
“I am hopeful that while this may just be a task force, it is really meaningful in the world of water for the state of Colorado,” said House Speaker Julie McCluskie, one of the bill’s co-sponsors and a Dillon Democrat. “Come January next year, if we aren’t ready to take action, I will be deeply disappointed.”
Sen. Dylan Roberts, a Democrat from Avon and another co-sponsor, said the task force shows how complex and sensitive water issues are.
“It’s a responsible thing to do to get buy-in from across the state, to have this thoughtful approach and not rush anything that we would have to fix in future years,” he said.
The task force was an answer to some heavily debated ideas discussed earlier in the session, said James Henderson, a farmer and rancher in the San Luis Valley and vice president of the Colorado Farm Bureau. Lawmakers considered how to conserve water and what would happen to the water that was conserved. One idea was to try to save water in an administrative “pool” in Lake Powell in case Colorado ever had a year when it could not meet its legal responsibility to send water to downstream users in other states.
For the agricultural community, some ideas raised complicated questions, Henderson said. If a farmer sold conserved water to help with the state’s legal responsibility — but that water wasn’t actually needed — what would happen to it? Would it be able to be used for agriculture, or would it be used for recreational or environmental purposes?
“We know it’s not needed. And then we’re going to use it for something else. That’s a little bit of a shell game, right?” Henderson said, adding that water savings from agriculture need to be temporary, voluntary and compensated.
None of the draft bills gained momentum or widespread support, but the task force would give the agriculture community a stronger voice in the ongoing conversation, he said, saying the panel would have the most important water conversations in Colorado in a decade. In Colorado, agriculture diverts about 85% of the water statewide, according to Colorado State University.
“The water is going to come from ag — there’s not really another abundant source on the West Slope. So it’s really, at its heart, an agriculture issue,” Henderson said. “Ag water is the economy for a lot of our rural towns, so we have to be very, very thoughtful on how we do that, while maintaining that that water right is an individual water right and has value.”
Simpson, who grows alfalfa in the San Luis Valley, said the early discussions during the session lacked transparency. The senator supported the task force for bringing those conversations to stakeholders.
“To have that kind of significant policy conversation, from my perspective, if you’re not doing that out in the open, in the public and transparent, I just think that conversation is doomed to failure,” Simpson said. “This is so important and involves so many stakeholders. … Doing things significantly like that takes some time and engagement.”
Slowing down the process instead of launching big legislation this year would help prevent unintended harmful consequences, said Jeff Stahla, spokesman for the Northern Colorado Water Conservancy District.
Zane Kessler, director of government relations for the Colorado River Water Conservation District, echoed that sentiment.
“If you’re talking about paying farmers and ranchers on the Western Slope to forgo their water use and send it across state lines, I would hope we take as much time as necessary to think through how we do that without bringing about negative externalities for our agricultural economy,” he said.
Hopefully, the task force isn’t just kicking the can down the road again
Other water experts said Colorado has had enough time to debate solutions to Colorado River Basin issues.
These conversations have been happening for 10 years, Wolff said. Southwestern Water Conservation District supported the bill in general but wanted to have a seat in the tribal sub-task force because the nine-county district is located next to both tribal reservations in Colorado and regularly works with the Southern Ute and Ute Mountain Ute tribes on water issues.
“Sometimes when you form these task forces, these committees — sometimes you see a lot of benefit and good come out of them. Sometimes you don’t,” Wolff said. “We have a good water year this year. Maybe that bought us a bit of time. I would hope that we use that time wisely and don’t sort of kick the can down the road to do other things.”
The state already has several groups that discuss Colorado River issues, like an Interbasin Compact Committee, basin roundtable groups from across the state and special work groups created by the Colorado Water Conservation Board.
“We’ve had literally hundreds of commissions, task forces and other study groups look at water issues over the years,” Beard said. “There isn’t a new thing any group could discover.”
The legislature should focus on “politically painful” actions, like encouraging conservation by pricing water closer to its value and discouraging interbasin diversions that take water out of the Colorado River, he said. But legislators aren’t suggesting those ideas, and he doubted the members of the task force would put forward similarly painful solutions themselves.
“This is not Colorado’s problem alone,” he said. “Every one of the states is doing the exact same thing, which is, ‘Don’t impact me. Look for the other guy hiding behind the tree.’ It’s a complex issue, but it’s not like we don’t know what to do. What we need to do is create the political will to do it. And I don’t see this commission as taking a meaningful step forward toward solutions.”
Jennifer Gimbel, senior water policy scholar at Colorado State University, said the task force’s goals seem “nebulous,” but having conversations is always a good thing. The draft legislation started by laying out defined responsibilities, but then the language was softened and said the task force should just consider issues. The legislation was brought up so late in the session that there wasn’t time for a thorough discussion of how to put the task force together, she said.
“Everybody came on strong: We’re going to do water, and we’re paying attention to the Colorado River. … And two or three weeks before the end of the session, now we have something come up,” Gimbel said. “I understand that there were all kinds of conversations and proposed legislation being talked about. But if it was important enough to the speaker and the head of Senate, why weren’t we doing this earlier?”
Several water experts and legislators were hopeful that the discussions this summer and the task force recommendation due in December will smooth the path for legislation in 2024.
“Anything that comes out of that that they’ve hammered out, that’s the work that needs to be done before we start writing a bill,” said Rep. Karen McCormick, D-Longmont. “Actually having the water people do this work first helps smooth over the politics part that will come later, so I see it as a really great step.”
What were the 2023 water bills and what happened to them?
What has passed or is up to Polis
Senate Bill 295: This measure would create a Colorado River drought task force charged with making policy recommendations to the legislature. It’s awaiting Polis’ signature.
Senate Bill 270: This bill, which hasn’t been signed, would allow for minor stream restoration projects to be taken up throughout the state, such as stabilizing banks and adding structures to streams impacted by fire or flood, to encourage such projects. An earlier version of the bill said water users could bring a challenge to water court if they had evidence of material impacts by a restoration project. That language was removed in its final version.
Senate Bill 178: This measure aims to make it easier for people who live in single-family homes that are governed by a homeowners association to install water-wise and ecologically beneficial landscaping. HOAs already are prohibited from preventing property owners from xeriscaping, but under this measure the associations would have less power over what that xeriscaping would be and they would also have to allow front yard vegetable gardening. It would also require HOAs to create plans for drought-tolerant landscape designs. The measure is awaiting the governor’s signature.
Senate Bill 177: This bill, which hasn’t been signed, appropriates $95 million to the Department of Natural Resources for water-related projects from the Colorado Water Conservation Board Construction Fund. A similar bill happens every year with changes based on funding availability.
Senate Bill 237: The bill, which was signed by the governor, transfers $12.6 million from the Severance Tax Operational Fund to the Water Plan Implementation Fund.
Senate Bill 267: This measure, which hasn’t been signed, would create a $2 maximum water quality fee for Chatfield State Park visitors with the bulk of the money going to the Chatfield Watershed Authority, which includes Jefferson and Douglas counties, and Castle Rock, Littleton and Larkspur. The organization must spend at least 25% of that revenue on water quality projects in Chatfield State Park. The fee, which would begin in 2025 at the earliest, is estimated to bring in about $55,000 per year, according to nonpartisan legislative staff.
House Bill 1257: This measure awaiting the governor’s signature would seek to improve water quality in mobile home parks by creating a water quality testing program, starting a grant fund to help address quality issues, requiring a Colorado Department of Public Health and Environment action plan on the topic and establishing enforcement mechanisms for violations.
House Bill 1220: This bill, which is still unsigned,would require the Colorado Water Center to complete an economic analysis on the impacts for Colorado, Nebraska and Kansas of Colorado not meeting the requirements set in a 2016 agreement to retire 25,000 acres of irrigated land in the Republican River basin. If the state doesn’t meet that obligation, the state water engineer would be required to shut off wells in northeastern Colorado, said Rep. Karen McCormick, D-Boulder, a sponsor of the bill.
Senate Bill 274: This technical bill is still unsigned by the governor. It makes changes to the administration of water quality fees assessed by the Department of Public Health and Environment related to reporting, commission members, administrative costs and setting fees.
Senate Bill 150: This bill, signed by Polis in April, requires manufacturers to label nondissolvable wipes with the phrase “Do Not Flush,” to try to mitigate clogs and other costly problems caused by the wipes from homes all the way to wastewater facilities.
Senate Bill 10: Signed into law by Polis in March, this bill allowed for more committee meetings about water issues. The bill changed the status of the Water Resources and Agriculture Review Committee from interim to permanent and removed limitations on how many meetings it could have.
House Bill 1125: This measure, signed by Polis in March, made administrative changes to how the state keeps track of water well ownership information. It removed certain permit filing requirements when there is a change of name, ownership or mailing address, and clarified well registration processes during a change in ownership.
House Joint Resolution 1007: This resolution, signed into law in March, was a bureaucratic step to add, change or remove proposed drinking water and wastewater projects on the list to receive funding from the Drinking Water Revolving Fund and the Water Pollution Control Revolving Fund.
Senate Bill 238: Another funding-related measure, signed in late April, allows money from a state grant fund to be used to match federal funding from the Infrastructure Investment and Jobs Act for certain clean water projects.
What got killed
House Bill 1010: This bill didn’t make it past its introduction in January. It proposed creating a task force to explore high-altitude water storage options. Rep. Barbara McLachlan, D-Durango, who co-sponsored the bill said the snowpack at ski resorts is already seen as a form of winter storage and the task force would be an unnecessary cost and use of time, according to reporting by Aspen Journalism.
CORRECTION: This story was updated at 12:14 p.m. on Monday, May 17, 2023, to correct details of Senate Bill 270, which allows for minor stream restoration projects to be taken up throughout the state.