State lawmakers are considering a bill that would let two energy companies with coal-fired power plants in northwest Colorado hang on to their water rights even after the plants’ planned closures in 2028.
Senate Bill 197 says that industrial water rights held by Xcel Energy and Tri-State Generation and Transmission Association Inc. will be protected from abandonment through 2050. Under Colorado law, a water right that is not being used could end up on an abandonment list, which is compiled every 10 years.
Abandonment is the official term for one of Colorado’s best-known water adages: Use it or lose it. It means that the right to use the water is essentially canceled and ceases to exist. The water goes back into the stream where another water user can claim it.
Supporters of the bill say this protection from abandonment would give the companies a grace period to transition to clean-energy sources and eventually use the water again in new methods of energy production. In the meantime, the water will remain in the stream for the benefit of the environment, recreation and downstream irrigators.
State Sen. Dylan Roberts, D-Frisco, is one of the bill’s sponsors and represents Clear Creek, Eagle, Garfield, Gilpin, Grand, Jackson, Moffat, Rio Blanco, Routt and Summit counties.
“The idea is if we can find a way to ensure that the water rights of the power companies are protected over the next couple of decades, this will give them a stronger incentive to find a new way to produce energy in the region,” Roberts said.
Tri-State plans to shut down its coal-fired power plant in Craig in 2028, the same year that Xcel Energy plans to close the Hayden Generating Station, which has prompted questions about what will happen to the water currently being used by the facilities.
Jackie Brown is a senior water and natural resource advisor at Tri-State. She said the bill preserves future opportunities for economic development by energy utilities in Moffat and Routt counties.
“The measures in this bill provide Tri-State with certainty that our water resources remain intact and available for future dispatchable, carbon-free generation as needed and projected in our Electric Resource Plan,” Brown said in a statement. “While we continue our planning process, keeping the utility water in the Yampa River helps all water users, creating a win-win situation.”
According to Brown, the water used from the Yampa River by both energy companies is estimated to be about 44 cubic feet per second of flow. But, if the bill passes, engineers will officially quantify by 2030 the amount of water that the industries have historically used, and that is the amount that will be protected from abandonment. Any portion of the water rights that the energy companies lease to a third party would not be protected from abandonment.
The Yampa River begins in the Flat Tops Wilderness, flows through the city of Steamboat Springs and west through Routt and Moffat counties to Dinosaur National Monument, and eventually joins with the Green River. The Yampa River basin was one of the last to be developed in the state and in recent years has begun experiencing some of the issues long present in other areas such as shortages, calls, an overappropriation designation and stricter enforcement of state measurement rules.
In 2018, irrigators placed the first call on the river, triggering cutbacks from junior water users. When an irrigator is not receiving the entire amount of water to which they are legally entitled, they can place a call, which requires water-rights holders with younger water rights to stop irrigating so the senior water user can get their share. The Colorado River Water Conservation District, the Colorado Water Trust and others have made releases out of Elkhead Reservoir to get extra water to these senior downstream irrigators and keep the call off the river.
Support from environmental groups
SB 197 has gained support from environmental groups, including Conservation Colorado, The Nature Conservancy and Western Resource Advocates. Josh Kuhn, senior water campaign manager with Conservation Colorado, said leaving the water in the river will have environmental benefits such as lowering the often-too-high temperature of the Yampa, boosting flows for recreation and the environment and preventing calls on the river.
But the benefit to the river and water users from SB 197 may only be temporary. The energy companies will still own the water rights and may begin using them again whenever they want.
“It has been made clear that there’s no assurances that the water will be there on a permanent basis because Tri-State wants the ability to use that water to generate additional renewable clean-energy supplies in the future,” Kuhn said. “So there is a shared understanding that this is being done on a temporary basis.”
With the impending closure of the coal mines and power plants that by one estimate will result in 800 lost jobs, some see the Yampa River as an underutilized amenity that could supply recreation jobs and enhance quality of life. Supporters of the bill say keeping the energy companies’ water in the river and protected from abandonment will ensure that the water is not diverted out of the basin.
“The Yampa is already a river that suffers the impacts of climate-driven drought,” Kuhn said. “And so, in order to help protect that river and the economy that’s dependent upon it, they were looking for solutions to make sure that none of that water was exported to another basin.”
The protection of the energy companies’ water rights is just one facet of SB 197, which would also implement recommendations from last year’s Colorado River Drought Task Force. These include expanding the state’s instream-flow temporary loan program to let owners of water stored in reservoirs to loan it for the benefit of the environment in stream reaches where the state does not hold an instream-flow water right; expanding the state’s agricultural water rights protection program; and waiving the matching funds requirement for water project grants to the Southern Ute and Ute Mountain Ute tribal nations.
Roberts was the sponsor of 2023’s SB 295, which created the drought task force. Although the 17-member task force did not advance protections for industrial water rights from abandonment as an official recommendation — failing on a 9-7 vote — it was included in the narrative section of the report that it provided to lawmakers.
“I’ve been working on this for months with the energy companies, with the state, with environmental groups and with local stakeholders in Routt and Moffat counties,” Roberts said. “And we narrowed the proposal significantly, and now almost everybody who was opposed on the task force is supportive of this idea moving forward.”
SB 197 passed unanimously in the Senate on Wednesday and will now be up for approval by the House.
Aspen Journalism is a nonprofit, investigative news organization covering water, environment, social justice and more. Visit http://aspenjournalism.org.
