2008 State Legislative Enactments Concerning Water
Peter Gowen, Chair Legal/Legislative Committee
The Colorado Legislature has completed its work for the regular 2008 session. The following narratives describe water bills that have been enacted into law that may be of interest to our membership. The narratives of water-related bills were prepared by Michael Valdez, Director of Legislative Relations, for the Colorado Bar Association (CBA), and were published in the August, 2008 edition of The Colorado Lawyer. This summary information is copyrighted by the CBA, and is used here with permission of the CBA. Detailed information about these 2008 Session Laws can be obtained from the legislature’s home web page located at www.leg.state.co.us/ .
SB 221—Concerning the authority of the Colorado water resources and power development authority to issue bonds for certain projects. By Sen. Romer and Rep. Scanlan. Authorizes the Colorado water resources and power development authority to issue bonds for the purpose of funding watershed protection and forest health projects. Describes terms and conditions of such bonds and caps bonds at $50 million. Permits governmental agencies participating in these projects to specify how the monies should be allocated by the authority subject to the following:
• up to 20 percent may be distributed to the clean energy development authority; and
• the remainder shall be distributed to the state forester.
Restores the authority to establish debt service reserve funds, and restricts the applicability of such funds to watershed protection projects and forest health projects.
Directs the clean energy development authority and the state forester to use monies received from the authority for watershed protection projects and forest health projects. Instructs the state forester to use labor, when feasible, from the Colorado youth corps or an accredited Colorado youth corps organization for watershed protection projects and forest and forest health projects. Directs the state forest service to collaborate with water providers, governments, and other interested public and private entities to recommend the use of bond monies and specifies considerations for making such recommendation. Effective July 1, 2008.
HB 1280—Concerning protection of water rights used by the Colorado Water Conservation Board for instream flows under contracts with water rights owners. By Rep. Fischer and Sen. Schwartz. Requires the Colorado Water Conservation Board to adopt criteria regarding proposed contracts for the temporary acquisition of instream flow rights. Requires that such rights not be on the division engineer’s abandonment list and that the division engineer confirm whether the proposal is administrable. Requires the board to keep records regarding the use of the water. Requires the contract to specify that the water is fully consumable downstream of the instream flow reach. Requires the board to obtain a decree that quantifies the historical consumptive use of the water right. Specifies that the time during which the board uses water rights for instream flow purposes pursuant to a contract shall not be considered as abandonment of the water right. Effective August 5, 2008.
HB 1346—Concerning the funding of Colorado Water Conservation Board projects. By Rep. Curry and Sen. Isgar. Authorizes the Colorado Water Conservation Board to loan $60,600,000 from he perpetual base account of the severance tax trust fund for construction of the Republican River water conservation district’s Republican River compact compliance pipeline. Transfers $1 million from the operational account of the severance tax trust fund to the Colorado Water Conservation Board construction fund and appropriates that amount to the department of natural resources for allocation to the board to finance a tamarisk control cost-sharing grant program. Appropriates $350,000 to the department for allocation to the division of water resources from the construction fund for renovation of existing gauging stations; replacement of outdated collection platforms and upgrading of transmission components of the satellite monitoring system; stream gauge flood hardening projects; and data collection efforts related to flood forecasting and warning. Effective May 29, 2008.
HB 1405—Concerning the funding of the Colorado water institute. By Rep. Fischer and Sen. Shaffer. For the 2008–09 fiscal year appropriates $500,000 from the operational account of the severance tax trust fund to the water research fund for use by the Colorado water institute. Effective May 21, 2008.
HB 1141—Concerning sufficient water supplies for land use approval. By Rep. Todd and Sen. Bacon. Requires a local government to make a determination as to whether an applicant for a real estate development permit for a development in excess of fifty units or single-family equivalents, or fewer as determined by the local government, has demonstrated that the proposed water supply is adequate to serve the proposed development. Requires either that the water supply entity have a water supply plan that meets listed conditions or that the applicant submit a commitment letter from the water supply entity or a report regarding the proposed development’s water demand and supply. Specifies the criteria pursuant to which the local government must determine whether the applicant has demonstrated a sufficient and sustainable water supply. Excludes cluster developments from the act. Effective May 29, 2008.
HB 1161—Concerning an increase in the regulatory authority of the mined land reclamation board over mining and, in connection therewith, ensuring the protection of ground water and public health. By Rep. Kefalas and Sen. Johnson. Defines “in situ leach mining” as the in situ leach mining of uranium. Requires the reclamation of lands affected by in situ leach mining. Specifies that uranium mining is a type of designated mining operation. Requires all in situ leach mining to restore all affected ground water to its pre-mining quality for all water quality parameters that are specifically identified in the baseline site characterization or in the water quality control commission’s regulations. Requires applicants for in situ leach mining permits to notify the owners of record of lands within three miles of the affected land and to describe in their application at least five similar mining operations that did not result in ground water contamination and the applicants’ compliance history.
In the case of in situ leach mining, requires the mined land reclamation board to:
• require the restoration of ground water to begin immediately on any cessation of extraction or production or the detection of contaminated ground water outside of the affected land;
• require, as a condition of permit issuance, that the applicant for an in situ leach mining operation pay for an initial site characterization and ongoing monitoring of the affected land and affected surface and ground water;
• deny a permit if the applicant fails to demonstrate that reclamation will be accomplished; and
• act on permit applications within 240 days.
Authorizes the board to deny a permit:
• based on scientific or technical uncertainty about the feasibility of reclamation;
• if the existing or reasonably foreseeable potential future uses of the affected ground water include domestic or agricultural uses and the mining will adversely affect the suitability of the ground water for such uses;
• if the applicant has previously violated the reclamation laws and any violation remains unabated; or
• if the applicant has demonstrated a pattern of willful violations of environmental protection requirements.
Requires notification to the office of mined land reclamation of any failure or imminent failure of certain listed mining structures within twenty-four hours after such failure or the discovery of an imminent failure. Expands the list of such mining structures. Effective May 20, 2008.
HB 1014—Concerning a requirement to transfer a well permit on conveyance of residential real property. By Rep. Looper and Sen. Gordon. Beginning in 2009, prior to or at closing, requires a buyer of residential real estate that includes a small capacity well or domestic exempt water well used for ordinary household purposes to complete a form notifying the division of water resources in the department of natural resources of the change in ownership of the well; except that, if the well is an existing well that previously had not been registered with the division, requires the buyer to complete a registration of existing well form. Requires the residential real estate contract approved by the real estate commission to require the buyer to complete the appropriate form. Requires a person who provides closing services for the transaction or, if there is no such person, the buyer, to submit the appropriate form to the division within sixty days after closing with as much information as is available. Makes the division responsible for obtaining the necessary information from the buyer. Specifies that the person providing the closing service is not liable for delaying the closing of the transaction to ensure that the buyer completes the form. Effective January 1, 2009.
HB 1241—Concerning the voluntary contribution designation benefiting the Colorado watershed protection fund that appears on the state individual income tax return forms and, in connection therewith, extending the period for the contribution designation and changing the name of the fund. By Rep. Scanlan and Sen. Schwartz. Changes the name of the Colorado Watershed Protection Fund to the Colorado Healthy Rivers Fund. Extends the period that state income tax return forms shall include a line whereby individual taxpayers may make a voluntary contribution to the Colorado healthy rivers fund. Effective August 5, 2008.