2009 State Legislative Enactments Concerning Water
Peter Gowen, Chair Legal/Legislative Committee
The Colorado Legislature has completed its work for the regular 2009 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, 2009 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/ .
S.B. 09-15. Concerning removal of the White River drainage basin from the jurisdiction of Water Division 5 to Water Division 6. By Sen. Tochtrop and Rep. C. Gardner. Moves the White River drainage basin from Water Division 5 to Water Division 6 to align judicial and administrative oversight. Makes the act applicable to matters filed in Water Divisions 5 and 6 on or after August 5, 2009. Effective August 5, 2009.
H.B. 09-1129. Concerning an authorization of pilot projects for the beneficial use of captured precipitation in new real estate developments, and making an appropriation in connection therewith. By Rep. Looper and Sen. Romer. Directs the Colorado Water Conservation Board (WCB) to select the sponsors of up to ten new residential or mixed-use developments that will conduct individual pilot projects to collect precipitation from rooftops and impermeable surfaces for nonpotable uses. Specifies that the purpose of the pilot projects is to:
• evaluate the technical ability to reasonably quantify the site-specific amount of precipitation that accrues to the natural stream system via surface and ground water return flows;
• create a baseline set of data and sound and transferable methodologies for quantifying native plant consumption and measuring local weather and precipitation patterns;
• evaluate a variety of precipitation harvesting system designs;
• measure precipitation capture efficiencies;
• quantify the amount of precipitation that must be augmented to prevent injury to decreed water rights;
• compile and analyze the data collected; and
• provide data to allow sponsors to adjudicate permanent augmentation plans.
Directs the WCB to establish criteria and guidelines for applications and the selection of pilot projects, including selection of pilot projects to represent a range of project sizes and different geographic and hydrologic areas in the state and giving priority to pilot projects that are located in areas that face renewable water supply challenges and that promote water conservation.
Requires pilot projects to:
• during the term of the pilot project, operate according to a substitute water supply plan if approved annually by the state engineer in which, during at least the first two years, the depletion is calculated as the total captured and measured precipitation and, after two years, as the amount of precipitation captured minus the historical consumptive use from preexisting, natural vegetation cover on the impermeable area;
• on completion of the pilot project, apply for a permanent augmentation plan or retire the pilot project;
• submit an annual preliminary report to the board and the state engineer summarizing the data collected; and
• submit a final report to the board and the state engineer by January 15, 2019.
Requires the WCB and the state engineer to brief the water resources review committee on the pilot projects by July 1, 2014, and to provide a final briefing to the water resources review committee by July 1, 2019. Specifies criteria and procedures for approval of a substitute water supply plan for pilot projects. Repeals the act, effective July 1, 2020. Effective June 2, 2009.
H.B. 09-1185. Concerning requirements for documents related to water rights applications. By Rep. Tipton and Sen. Isgar. Allows documents related to water rights applications to be transmitted by methods other than mail. Rescinds the requirement that applications and statements of opposition to such applications be filed in quadruplicate. Recognizes the authority of the Colorado Supreme Court to adopt rules to supplement statutory filing and transmittal procedures. Effective July 1, 2009.
H.B. 09-1233. Concerning the recognition of acequias and, in connection therewith, authorizing acequia ditch corporations. By Rep. Vigil and Sen. Schwartz. Allows the creation of acequia mutual ditch companies, and allows an existing mutual ditch company to convert to an acequia mutual ditch company if certain eligibility requirements are met. Allows an acequia mutual ditch company to:
• hold its elections pursuant to a one landowner-one vote system;
• require owners of land irrigated by an acequia to contribute labor to the maintenance and repair of the acequia or to pay an assessment in lieu of such labor;
• allocate water on basis other than pro rata ownership of the mutual ditch; and
• hold a right of first refusal regarding the sale, lease, or exchange of any surface water right that has historically been used to irrigate long-lot land by the acequia.
Effective April 22, 2009.
H.B. 09-1303. Concerning the application of engineering criteria to increase efficiency in the administration of wells that withdraw ground water in conjunction with the mining of minerals and, in connection therewith, integrating wells that withdraw ground water in conjunction with the mining of minerals into the prior appropriation system and extending the time schedule for well owners to correct deficiencies in permitting and operation. By Rep. Curry and Sen. Isgar. Clarifies that the definition of “nontributary ground water” applies to 100 years of continuous withdrawal. Requires notice to an oil and gas operator if the surface location of a proposed domestic exempt water well will be within 600 feet of the operator’s oil and gas well. Authorizes the state engineer to issue a well permit, notwithstanding the generally applicable 600-foot limitation, if both the proposed well and all existing wells within 600 feet of the proposed well are oil and gas wells or if the state engineer gives notice and an opportunity to comment to the owners of wells that are not oil and gas wells within the 600-foot limit.
Authorizes the state engineer to promulgate rules applicable to the withdrawal of nontributary ground water to facilitate the mining of minerals. Gives oil and gas wells that illegally divert ground water until March 31, 2010, to come into compliance. Specifies procedures and requirements for substitute water supply plans and plans for augmentation for coal bed methane wells that pump tributary ground water. Requires either a substitute water supply plan or a plan for augmentation for such wells by March 31, 2010. Authorizes temporary substitute water supply plans for such wells until December 31, 2012 and by January 1, 2013, requires such wells to be subject to either permanent plans for augmentation or substitute water supply plans and applications to the water court for plans for augmentation. Effective June 2, 2009.