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In January, “The New Falcon Herald” focused on defining bedrock aquifers like the Denver Basin system. Bedrock aquifers are non-tributary, which means pumping water from them will not quantitatively affect the region’s stream systems. This month, the focus is on alluvial aquifers, over-appropriation of aquifers in general and state statutes.
“Alluvial and tributary water use developed in the 1930s and 40s after the drought,” said Kevin Rein, a state engineer and the director of the Colorado Division of Water Resources. “It was great for those people who did not have senior priority surface water rights. They finally had water to use.”
Back then, it was believed that groundwater, water from beneath the ground and surface water were not connected, Rein said. From an engineering standpoint, it is clear there is a connection between some groundwater sources and surface water, so if someone pumps water from a tributary aquifer, they are going to affect surface water streamflow, he said.
“In 1969 and from subsequent case law, we got direction that in order to pump from a well in a tributary aquifer, you need to have a plan of augmentation,” Rein said. “You need a plan to calculate and acknowledge the impact to streams, and replace it with some other source of water.”
As opposed to bedrock aquifers, alluvial aquifers are almost exclusively tributary, meaning they are renewable and connected to surface water, Rein said.
Dave Doran, board president of the Upper Black Squirrel Creek Ground Water Management District, said the alluvial aquifers in the region, while renewable, are over-appropriated to the point where the amount of water taken from the aquifers exceeds the amount of renewable water that is being put back into them.
Terry Stokka lives in Black Forest and is a member of the Black Forest Water and Wells committee formed in March 2019 as part of the Friends of the Black Forest Preservation Plan organization. He said Black Forest used to have streams and creeks running all through it but over-appropriation has resulted in those surface water sources drying up.
Over-appropriation is not only a concern in alluvial aquifers, Doran said. The UBS management district no longer allows wells to be drilled in the Dawson aquifer –- part of the Denver Basin aquifer system –- in their management district, he said.
“We were seeing the trend of so many Dawson wells going dry,” Doran said. “It would behoove us to try to curtail over-appropriation. Our frustration is that it is not a race to conserve the water but it seems to be a race to see who can pump it first and the fastest.”
Rein said the problem might be linked more to the shape of the aquifers and locations of the wells pumping from them. If the aquifers are bowl-shaped, certain areas on the outer edges of the aquifer are shallower than those toward the middle, he said.
If someone’s well is drilled to the deepest part of a particular aquifer, they may be withdrawing the designated amount each year; but the water in the aquifer could still be going down in other areas, Rein said. It is somewhat based on where a person decides to buy property, he said.
“The state recognizes that in the case where the water is not at the same level, it is because it may depend on where the wells are,” Rein said. “We have not allocated more water than there is in the aquifer as a whole.”
Water pumped from bedrock aquifers, while not governed by the water replacement legislation, is governed by state legislation that dictates how much water someone can withdraw from the aquifer that supplied the well water, Rein said. That legislation allows for the withdrawal of 1 percent of the total amount of water underlying one’s land per year, he said.
Instituted in 1973, that legislation –- also known as the 100-year statute –- assumes that if everything is operating perfectly in a well, the water in that aquifer will be gone in 100 years, Rein said. The 100-year clock starts when a well is drilled and starts pumping water, he said.
“However, our understanding of aquifers is not perfect,” he said. “We have to consider that people start (pumping) at different times and withdraw different amounts. Also, right now people enjoy a lot of help from confined pressure in the aquifer, which makes it very economical to pump the water. When that goes away, it is not really going to be economical or cost-effective to pump that water. So, we do not think in terms of pumping; and, in 100 years, it is all gone.”
The 100-year statute must be met before a building permit is issued, meaning each developer has to show their development legally has at least 100 years’ worth of water available for use, Rein said. However, some counties like El Paso County have put into place a 300-year supply requirement, he said.
Stokka said that while the 100-year statute might make sense on paper, it does not make sense in reality. For the developers who started their 100-year clock in 1973, that time frame is almost halfway over, yet that non-renewable resource is being used at an increasingly higher rate, he said. More building permits are being issued and more “straws” are dipping into the aquifer to pull out water, but they all claim to have at least 100 years’ worth of a non-renewable resource available, he said.
“What happens when that resource runs out?” he said. “It has got to happen sometime.”
Doran agreed and said the 100-year and 300-year requirements are totally pointless. No one can guarantee the water will be there in 100 years, let alone 300 years, he said. In fact, Doran said the 300-year requirement is actually worse than the 100-year requirement because it appears as though a developer is stating there is a 300-year supply of water available for use, rather than just a 100-year supply.
“I am committed to this community,” she said.
Rein said he is aware of the concern with the 100-year and 300-year requirements and has been involved with issues regarding the Denver Basin aquifer system since he started with the DWR in 1998.
“When do we make the decision to do something different because wells are going dry?” Rein asked. “That is the type of discussion that needs to be had, and right now, the General Assembly has effectively acknowledged that they are going to keep allowing people to mine these aquifers because the aquifers are great resources, based on what the General Assembly determined in 1973.
“As the counties and the developers and the citizens become more and more aware of the situation, maybe they will be inclined to go to the Legislature,” he said. “As a regulatory agency, it does not really fall under our purview to raise these policy concerns. Is the General Assembly going to do anything different? I do not know.”
Doran said he is frustrated that groundwater resources are not adequately protected, and added, “No one complains until they open the tap and there is nothing there.”
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Colorado school districts could be bringing a piece of school funding legislation to November’s ballot for a vote by the community. Craig Harper, budget analyst for the Joint Budget Committee of the Colorado General Assembly, said the legislation would reform the Colorado property tax system to further support education.
Brett Ridgway, chief business officer for El Paso County Colorado School District 49, has been integral in creating the legislation. He said to make an informed decision about these issues, the community needs to understand the sources of a school district’s property tax revenue.
“Each school district has a total program levy, which has been a fixed amount for most school districts for nearly 20 years,” he said. “The Legislature froze all those total program levies in 2007. The other source is a group of levies like override levies and bonds. The community has full discretion and authority over those; and, without the community’s approval in a vote, that group of levies does not happen.”
The total program levy for each school district varies across the state from a high of 27 mills to a low of 1.68 mills, with 39 districts at the 27 mills mark, Ridgway said. That results in a huge disparity in the taxpayer experience, he said.
According to the website http://chalkbeat.org, “For one mill, $1 is charged per $1,000 of assessed value. In a district charging 20 mills, $20 would be charged per [$]1,000.”
An example of that disparity can be seen by comparing Ellicott School District 22 and Hanover School District 28, Ridgway said. The two districts share a boundary but Ellicott residents pay 27 mills while Hanover residents have been paying 8 mills for many years, he said.
Harper said in that instance, if a house in Ellicott was valued at $100,000 and another identical house in Hanover was valued at the same amount, the Ellicott resident would pay more than three times what the Hanover resident pays.
Another way to look at the concept is to compare Aspen, a high property wealth district, to the two school districts in Pueblo, which are both fairly low property wealth districts, he said. To fully fund the district’s educational program, Aspen residents pay 4 mills and receive about 30 percent of their budget from the state, Harper said.
“Both Pueblo school districts are at 27 mills,” he said. “They both get about 79 percent of their budget from the state, but they are paying more than six times the tax rate that Aspen is paying because they just simply do not have the tax base to cover their budgetary needs.”
Uniform mill levy
Legislation that would address that disparity is the implementation of a uniform mill levy, Harper said.
“By moving to a uniform mill levy, the proposal would implement an intentional system to treat identical taxpayers, in this case measure by property value, in districts receiving state share identically,” he said
However, if a school district’s educational program was fully funded at an amount lower than the uniform mill levy amount – like in Aspen’s case – the mill levy would not change, Harper said.
Ridgway said since so many school districts are already at or close to 27 mills, it makes sense to progressively move every district to either 27 mills or whatever amount would fully fund their educational program, whichever mill amount was lower.
By passing this legislation, a segment of the state contribution to a fully-funded district could be recaptured and redistributed to districts that need the funding, he said. “Since the state would not have to pay as much to the districts that have low mill levies, that money could go to the districts that need it,” Ridgway said.
Override equalization
The second part of the legislation, known as an override equalization, would provide a state matching funds for mill levy override revenue raised in a district with lower property wealth values; thereby, increasing equity in mill levy overrides for those lower-property-wealth districts, Harper said.
“High-property wealth district are much more able, and likely, to support their students with overrides,” Ridgway said. “For example, 94 percent of high property wealth districts have an override, and they (the overrides) average $1,921.60 per pupil which they gain from (an override of) 2.617 mills, while only 49 percent of low property wealth districts have an override. And they (the overrides) average only $914.25 per pupil which they gain from (an override of) 12.7 mills.”
To be eligible to receive the state matching funds outlined under the override equalization part of the legislation, residents must agree to the uniform mill levy piece, which in some cases will result in an increase in property taxes, Ridgway said.
Because of the Taxpayer Bill of Rights, a tax increase must be approved by voters, and increasing a district’s mill levy rate constitutes a tax increase, he said. However, the benefits outweigh the cost, which is illustrated in how D 49 would fare with the new legislation in place, Ridgway said.
By bringing D 49’s mill rate up from 24.459 mills to 27 mills, which results in an increase of about $18 per $100,000 in assessed property value, the district would be eligible to receive $28.4 million from the override equalization, he said. Ultimately, if the D 49 resident invests a combined $2.7 million, the state of Colorado would give back $28.4 million to the district, Ridgway said.
Buying down the negative factor
Another benefit to the proposed legislation is a “buying down” of the negative factor, Ridgway said.
According to the GreatEducation Colorado website, Amendment 23 was passed in 2000 and mandates that “base” per-pupil funding increase each year by the rate of inflation. To determine that increase amount, each district’s base is run through a formula that includes variables like school district size, number of “at-risk” kids and local cost-of-living, the website states. Those variables — or “factors” — can substantially increase the average per pupil funding received by a school district.
However, the website states: “In 2009, the Legislature reinterpreted Amendment 23 to mean that only the base amount was covered by the mandatory increases –- not the factors. Under this interpretation, the Legislature could (and did) cut total spending from one year to the next and claim compliance with Amendment 23.”
Also, to make cuts from all districts, the Legislature added a “budget stabilization” or “negative factor” to the formula that determines per pupil funding. “In effect, the Legislature now decides how much it wants to spend on school finance, and then adjusts the negative factor to meet that funding target.”
The proposed legislation’s “buying down” of the negative factor ultimately results in additional state funds for each district in recognition of the amount of increased per pupil funding it should have received under Amendment 23, Ridgway said.
“For D 49, the budget stabilization or negative factor buydown would result in an additional $9.3 million or an increase of $1,416.14 per student,” he said. The overall amount the district would receive from investing $2.7 million in additional property taxes is $35 million per year, Ridgway said.
A district like Ellicott would receive $392.4 million from the negative factor buydown without having to raise taxes –- since they are already at 27 mills –- if the legislation passes, he said.
The bottom line: “Everyone is going to get something from this,” Ridgway said. “It just depends on how much the taxpayers contribute to that.”
The legislation should be introduced before the end of the first quarter; and, if it passes, implementation would take place in 2022, Ridgway said.
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