Water Resources Review Committee (09/05/2014)

Final
STAFF SUMMARY OF MEETING

WATER RESOURCES REVIEW COMMITTEE

Date:	09/05/2014	ATTENDANCE

Time:	09:03 AM to 01:23 PM	Brophy	X
		Coram	X
Place:	HCR 0112	Hodge	X
		Jones	*
This Meeting was called to order by		Mitsch Bush	E
	Representative Fischer	Roberts	X
		Sonnenberg	*
This Report was prepared by		Vigil	X
	David Beaujon	Schwartz	X
		Fischer	X
		X = Present, E = Excused, A = Absent, * = Present after roll call

Bills Addressed:		Action Taken:
Call to order and announcement Climate Change in Colorado Water and Wastewater Infrastructure Needs and Update on SB 09-165 De Novo Review of Colorado Groundwater Commission Hearing Decisions Postpone Modified Ground Water Modeling in the Denver Basin Voluntary Clean-Up and Development Act Public Testimony Requests for Draft Legislation Update on the CWCB Precipitation Collection Pilot Project		- Briefing only Briefing only Legislation requested Legislation requested Briefing only - Legislation requested Legislation recommended

09:03 AM -- Call to order and Announcements

Representative Fischer called the meeting to order and announced agendas for upcoming meetings of the Water Resources Review Committee. He also discussed the process for requesting and recommending draft legislation.

09:05 AM

Tom Morris, Office of Legislative Legal Services, discussed deadlines for draft legislation and for providing drafts to the committee for its review.

09:06 AM -- Climate Change in Colorado

James Eklund, Director, Colorado Water Conservation Board (CWCB), discussed changes in Colorado's climate in recent years and the increased variability in streamflows and weather in Colorado. He also discussed policies to help Colorado address impacts from climate change and the need for additional scientific research to help the state prepare for these events.

09:13 AM

Jeff Lukas, University of Colorado, Cooperative Institute for Research in Environmental Sciences, discussed the contents of the 2014 Climate Change in Colorado report that he helped prepare for the CWCB. This report is available on the CWCB's website. He identified the global climate models that were used in the report and explained that Colorado's climate has warmed by 2 degrees in the past 30 years and identified other climate changes experienced by Colorado including increased wildfires and dust on snow. He attributed the increased temperature in Colorado to increased greenhouse gases and discussed the possible role of natural variability in these temperature increases. He also discussed projections for climate change in Colorado and identified potential impacts to Colorado water supply related to climate change.

09:30 AM

Mr. Lukas responded to questions from the committee about potential impacts to Colorado from climate change, the use of climate records in projecting future climate change, and factors that may contribute to increased dust on snow, such as land management policies.

09:42 AM

Taryn Finnessey, Climate Change Risk Management Specialist, CWCB, explained how the CWCB will use the climate change report and other studies to help plan for Colorado's future water needs. She also responded to questions from the committee about how this information may be used to allocate funding for water infrastructure projects that may experience the most impacts from climate change.

09:52 AM -- Water and Wastewater Infrastructure Needs and Update on SB 09-165

Kevin Bommer, Deputy Director, Colorado Municipal League, discussed the need for financial assistance for small communities to help pay for drinking water and wastewater infrastructure. He explained that the Colorado Department of Public Health and Environment (CDPHE) administers state grant programs for drinking and domestic wastewater projects to communities with fewer than 5,000 residents. Drinking water grant funds may be used to plan, design, construct, upgrade, or consolidate water systems. Domestic wastewater treatment grant funds are used to construct or upgrade wastewater treatment facilities. In 2009, the General Assembly enacted Senate Bill 09-165 that capped the amount of severance tax revenues that may be transferred annually to the Perpetual Base Fund of the Severance Tax Trust Fund at $50 million. If this cap is exceeded, up to $10 million may be transferred annually from the Perpetual Base Fund to the Small Communities Water and Wastewater Grant Fund. He identified severance tax revenue forecasts and explained that the $50 million cap will be reached in the current fiscal year and that new moneys will be available for the Small Communities Water and Wastewater Grant Fund. He also discussed the 2015 draft project eligibility list that identifies drinking water and waste water infrastructure needs in Colorado. He also responded to questions from the committee about climate change and water infrastructure needs to prepare for these changes.

10:03 AM

Michael Beck, Water Quality Control Division (WQCD) of the CDPHE, explained that the Small Communities Water and Wastewater Grant Fund will receive $10 million in FY 2014-15 and discussed the annual surveys conducted by the CDPHE to identify drinking water and waste water infrastructure needs. He also discussed legislation approved in 2013 that appropriated moneys to pay for nutrient control measures and funding in the 2014 Long Appropriations Bill for drinking and waste water infrastructure improvements. He also identified projects that received moneys from the Water Quality Improvement Fund. This fund receives penalties collected from violations of the Colorado Water Quality Control Act, and is administered by the WQCD

10:13 AM

Charles T. Unseld, Deputy Director, Division of Local Government, Department of Local Affairs (DOLA) discussed water and waste water project funding distributed by the DOLA January 1, 2012 - August 1, 2014 (Attachment A). He also explained how these moneys are combined with other funding sources to help maximize the state's assistance to local communities.

Attachment A.pdf

10:18 AM

Mike Brod, Executive Director, Colorado Water Resources and Power Development Authority, discussed revolving loan funds administered by the authority for public drinking water and waste water projects. The Drinking Water Revolving Fund (DWRF) is a low-interest loan program to assist public drinking water systems with financing the cost of the infrastructure needed to comply with the requirements and objectives of the federal Safe Drinking Water Act. Most of the money in the DWRF was obtained from annual grants from the EPA. In 2014, the DWRF is expected to receive a $15.4 million capitalization grant from the U.S. Environmental Protection Agency (EPA). Pursuant to federal law, the state must provide a match of 20 percent for each dollar that it loans. This match is financed from loan repayments and revenue bonds. As of December 31, 2013, the authority has issued 195 loans totaling $502.7 million. It has also provided $65.7 million in matching dollars.

10:24 AM

Mr. Brod explained the Water Pollution Control Revolving Fund (WPCRF) is a low-interest loan program that helps public entities finance, design, and construct wastewater treatment projects, nonpoint source projects, and reuse projects. In 2014, the fund is expected to receive $11.2 million in capitalization grant funds from the EPA. The state must provide a match of 20 percent for each dollar that it loans that is obtained from loan repayments and revenue bonds. As of December 31, 2013, the authority has issued 236 loans representing $981 million in projects. It has also provided $56.9 million in matching dollars.

10:29 AM

Mr. Brod explained how the authority is assisting the Colorado Water Conservation Board in the development of the Colorado Water Plan. He also responded to questions from the committee about the effect of the recent recession on the ability of some communities to pay for infrastructure improvements and the availability of funding for such projects under the improved economy.

10:31 AM -- De Novo Review of Colorado Groundwater Commission Hearing Decisions

Carolyn F. Burr, Chair of the Ground Water Commission, explained that the commission is a regulatory and an adjudicatory body authorized by the General Assembly to manage and control ground water resources within eight Designated Ground Water Basins in eastern Colorado. Designated Basins are located in the eastern plains where there is very little surface water and where users rely primarily on ground water as their source of water supply. The Ground Water Commission has delegated many of its regulatory functions to the State Engineer in the Department of Natural Resources, including the issuance of well permits and the determination of certain ground water rights. The State Engineer also provides technical and administrative assistance to the commission and ground water management districts. The commission has delegated to its hearing officer, an employee of the Division of Water Resources, the review of facts, conclusions of law, and initial decisions of the Ground Water Commission. The hearing officer's decision may be appealed to the commission.

10:35 AM

Ms. Burr explained that appeals of commission decisions are heard by the district court in a de novo procedure She also discussed recent litigation appealed to the district court and how the court used evidence in this case. She requested legislation to require de novo review of district court decisions based on evidence submitted to the Ground Water Commission. She also responded to questions from the committee about how agency decisions are appealed for other state regulatory bodies, and recent trends in appeals of Ground Water Commission decisions.

10:43 AM -- Postpone Modified Ground Water Modeling in the Denver Basin

Kevin Rein, Deputy State Engineer, Division of Water Resources, identified the Denver Basin aquifer system that includes several distinct aquifers including the Dawson Aquifer and distributed a copy of his presentation (Attachment B). He discussed the difference in the regulation of pumping of ground water in the Denver Basin compared with ground water that is hydrologically connected to surface streams -- called tributary groundwater -- that is regulated according to the priority system. He explained that use of nontributary ground water is based on legislatively defined criteria that allows for the gradual depletion of this nonrenewable resource. Nontributary ground water is defined in statute as ground water that will not, within 100 years, deplete the flow of a stream at an annual rate greater than one-tenth of 1 percent of the annual pumping rate. Ownership of nontributary ground water is generally based on overlying land ownership. Annual well pumping is also limited to 1 percent of the underlying nontributary ground water. A well permit from the State Engineer must be obtained prior to drilling for nontributary ground water. Unlike water in streams, claims for nontributary ground water typically do not go through water court.

Attachment B.pdf

10:48 AM

Mr. Rein explained how Senate Bill 85-05 defined the boundaries of nontributary and not nontributary groundwater and established water replacement requirements for these two types of groundwater. He also identified prior legislation to extend deadlines for the use of actual aquifer conditions when determining replacement requirements for not nontributary ground water pumping. He also discussed data collection and other technical challenges to developing a model that uses actual aquifer conditions. He identified users of the Denver Basin aquifers and the reasons that few users are seeking to pump from the lower Dawson Aquifer. He proposed legislation to delay the augmentation requirement or permanently remove the requirement for a new model. He also responded to questions from the committee about the effect of the proposed legislation on water users in the Denver Basin and other issues and projections for groundwater needs in the basin to supply proposed residential development.

11:17 AM

Mr. Rein responded to questions from the committee regarding the legislation proposed by the Ground Water Commission and its effect on Division of Water Resources staff workload. He also discussed the regulation of stormwater runoff from new developments.

11:21 AM -- Update on the CWCB Precipitation Collection Pilot Project

Rebecca Mitchell, Section Chief, Colorado Water Conservation Board (CWCB), explained that in 2009, the legislature enacted House Bill 09-1129 that authorized a 10-year pilot program for the collection of precipitation for nonpotable uses. The purpose of the program is to develop data and methods to measure local precipitation, native plant consumption, and ground water flow. The program will also evaluate precipitation collections designs and determine how to prevent injury to water rights. She explained that the CWCB has authorized one precipitation pilot project at the Sterling Ranch development in Douglas County.

11:25 AM

Harold Smethills, Sterling Ranch, LLC, discussed the proposed Sterling Ranch community. He explained how water efficiency and demand management are being used to address the water needs at Sterling Ranch, including the use precipitation collection, also called rainwater harvesting. Mr. Smethills discussed annual precipitation at Sterling Ranch and how precipitation collection can be used to provide a reliable water supply for lawns and gardens. Precipitation collection also helps save energy and protects water quality. He also identified measures to ensure that precipitation collection facilities do not impact downstream water users. He discussed runoff from Sterling Ranch during the September 2013 floods and explained how this information will be used to determine how to operate the precipitation collection system in a way that protects downstream users.

11:37 AM

Beorn Courtney, Professional Engineer, Sterling Ranch, LLC, responded to questions from the committee about efforts to measure the amount of precipitation that enters underlying aquifers and identified spending on the pilot project for natural condition monitoring, fees, and other expenses. She identified upcoming activities of the pilot project including the application for the project's water right and augmentation plan. She also provided recommendations to encourage additional precipitation collection pilot projects including legislation to require local governments to include demand management in residential developments, provide additional state support for research on natural conditions, and reduce augmentation requirements during the substitute water supply plan period.

11:43 AM

Kevin Rein, Deputy State Engineer, responded to questions from the committee about the role of the Division of Water Resources in the precipitation collection pilot project.

11:55 AM -- Voluntary Clean-Up and Development Act

Martha E. Rudolph, Director of Environmental Programs, Colorado Department of Public Health and Environment (CDPHE), discussed the department's voluntary clean-up program for mines and other contaminated sites. She explained that properties participating in the program are required to clean up a property based on its future use and explained how the CDPHE consults with other state agencies regarding proposed clean up projects. She also explained how the department's approval of a plan may enable a developer to obtain financing for a project. She responded to questions from the committee about the Voluntary Clean-Up and Development Act and how it regulates historic mine clean-ups.

12:09 PM

Tony Waldron, Minerals Program Supervisor, Division of Reclamation, Mining, and Safety, Department of Natural Resources, explained how the division assists the CDPHE in its review of voluntary mine clean-up applications. He also responded to questions from the committee about when plugging of a mine may be used to prevent mine drainage as part of voluntary mine clean-up.

12:17 PM -- Public Testimony

Robert Longenbaugh, representing himself, discussed the Meridian residential development in the Upper Black Squirrel Designated Basin and its application to use runoff from impervious surfaces in the development. He also identified case law related to the use of salvaged water and submitted written testimony that R.W. Parshall provided to For Collins Rotary Club on August 29, 1956 concerning the variability of precipitation and measure that need to be taken to ensure a reliable water supply (Attachment C).

Attachment C.pdf

12:23 PM

The committee recessed.

12:26 PM -- The committee returned from recess. Hannah Holms, coordinator, Water Center, Colorado Mesa University, (testifying remotely) thanked the committee for inviting her to participate in the remote testimony test and discussed the mission and activities of the Water Center. The General Assembly passed a law in 2014 (HB 14-1303) that allows the Executive Committee of the Legislative Council to consider, recommend, and establish policies allowing legislative committees to take remote testimony from one or more locations in Colorado. If remote testimony is approved, the law requires at least one remote site be located in the western slope area of Colorado.

12:37 PM

The committee recessed.

12:38 PM -- Requests for Draft Legislation

Pursuant to Legislative Council's bill drafting guidelines for interim committees, Representative Fischer explained that a bill concept must be approved by a majority of the committee in order for it to be drafted and considered for final action on September 30. He invited the committee to recommend draft legislation.

12:39 PM

Senator Brophy requested that the committee consider recommending a bill to implement recommendations 1A and 1B of the HB 12-1278 study concerning the South Platte alluvial aquifer. These recommendations seek to mitigate localized high water table conditions in the basin.


BILL:	Requests for Draft Legislation
TIME:	12:41:20 PM
MOVED:	Brophy
MOTION:	Moved to draft a bill to implement recommendations 1A and 1B of the HB 12-1278 study concerning the South Platte alluvial aquifer. The motion passed without objection.
SECONDED:	Sonnenberg
		VOTE
	Brophy
	Coram
	Hodge
	Jones
	Mitsch Bush	Excused
	Roberts
	Sonnenberg
	Vigil
	Schwartz
	Fischer

YES: 0 NO: 0 EXC: 1 ABS: 0 FINAL ACTION: Pass Without Objection

12:44 PM

Mr. Morris asked the chair to designative a committee member to work with staff on the drafting of bills requested by the committee.

12:46 PM

Senator Roberts recommended that new state facilities be required to use best manage practices in order to achieve 60/40 ratio of indoor to outdoor use.


BILL:	Requests for Draft Legislation
TIME:	12:46:55 PM
MOVED:	Roberts
MOTION:	Moved to draft a bill to require state facilities to use best management practices in order to achieve 60/40 ratio of indoor to outdoor use. The motion passed without objection.
SECONDED:	Hodge
		VOTE
	Brophy
	Coram
	Hodge
	Jones
	Mitsch Bush	Excused
	Roberts
	Sonnenberg
	Vigil
	Schwartz
	Fischer

YES: 0 NO: 0 EXC: 1 ABS: 0 FINAL ACTION: Pass Without Objection

12:53 PM

Senator Roberts recommended that the Department of Local Affairs be required to provide training to planners on water conservation operations and best management practices.


BILL:	Requests for Draft Legislation
TIME:	12:54:27 PM
MOVED:	Roberts
MOTION:	Moved to draft a bill to require the Department of Local Affairs provide training to planners on water conservation operations and best management practices. The motion passed without objection.
SECONDED:	Hodge
		VOTE
	Brophy
	Coram
	Hodge
	Jones
	Mitsch Bush	Excused
	Roberts
	Sonnenberg
	Vigil
	Schwartz
	Fischer

YES: 0 NO: 0 EXC: 1 ABS: 0 FINAL ACTION: Pass Without Objection

12:59 PM

Senator Jones recommended that a bill be drafted to update state requirements for water conservation planning by certain water providers.


BILL:	Requests for Draft Legislation
TIME:	01:00:30 PM
MOVED:	Jones
MOTION:	Moved to draft a bill to update state requirements for water conservation planning by certain water providers. The motion passed without objection.
SECONDED:	Vigil
		VOTE
	Brophy
	Coram
	Hodge
	Jones
	Mitsch Bush	Excused
	Roberts
	Sonnenberg
	Vigil
	Schwartz
	Fischer

YES: 0 NO: 0 EXC: 1 ABS: 0 FINAL ACTION: Pass Without Objection

01:03 PM

Senator Schwartz recommended that a bill be drafted to implement the recommendations of the Sterling Ranch developer to make rain water harvesting pilot projects more attractive.


BILL:	Requests for Draft Legislation
TIME:	01:03:49 PM
MOVED:	Schwartz
MOTION:	Moved to draft a bill to encourage additional rain water harvesting pilot projects. The motion passed without objection.
SECONDED:	Hodge
		VOTE
	Brophy
	Coram
	Hodge
	Jones
	Mitsch Bush	Excused
	Roberts
	Sonnenberg
	Vigil
	Schwartz
	Fischer

YES: 0 NO: 0 EXC: 1 ABS: 0 FINAL ACTION: Pass Without Objection

01:03 PM

Senator Hodge recommended that a bill be drafted to permanently remove the groundwater model requirement for the Dawson aquifer in the Denver Basin.


BILL:	Requests for Draft Legislation
TIME:	01:05:42 PM
MOVED:	Hodge
MOTION:	Moved to draft a bill to permanently remove the groundwater model requirement for the Dawson aquifer in the Denver Basin. The motion passed without objection.
SECONDED:	Schwartz
		VOTE
	Brophy
	Coram
	Hodge
	Jones
	Mitsch Bush	Excused
	Roberts
	Sonnenberg
	Vigil
	Schwartz
	Fischer

YES: 0 NO: 0 EXC: 1 ABS: 0 FINAL ACTION:

01:06 PM

Representative Coram recommended that a bill be drafted to create a grant program for phreatophyte management.


BILL:	Requests for Draft Legislation
TIME:	01:07:37 PM
MOVED:	Coram
MOTION:	Moved to draft a bill to create a grant program for phreatophyte management. The motion passed without objection.
SECONDED:	Roberts
		VOTE
	Brophy
	Coram
	Hodge
	Jones
	Mitsch Bush	Excused
	Roberts
	Sonnenberg
	Vigil
	Schwartz
	Fischer

YES: 0 NO: 0 EXC: 1 ABS: 0 FINAL ACTION: Pass Without Objection

01:10 PM

Representative Fischer recommended that a bill be drafted to implement the recommendation of the Chair of the Ground Water Commission concerning appellate review of Ground Water Commission decisions.


BILL:	Requests for Draft Legislation
TIME:	01:11:48 PM
MOVED:	Fischer
MOTION:	Moved to draft a bill concerning appellate review of Ground Water Commission decisions. The motion passed without objection.
SECONDED:	Roberts
		VOTE
	Brophy
	Coram
	Hodge
	Jones
	Mitsch Bush	Excused
	Roberts
	Sonnenberg
	Vigil
	Schwartz
	Fischer

YES: 0 NO: 0 EXC: 1 ABS: 0 FINAL ACTION:

01:13 PM

Representative Sonnenberg recommended that a bill be drafted to amend the Voluntary Clean-Up and Development Act to address concerns presented to the committee at its August 20 meeting.


BILL:	Requests for Draft Legislation
TIME:	01:13:58 PM
MOVED:	Sonnenberg
MOTION:	Moved to draft a bill to amend the Voluntary Clean-Up and Development Act. The motion passed without objection.
SECONDED:	Vigil
		VOTE
	Brophy
	Coram
	Hodge
	Jones
	Mitsch Bush	Excused
	Roberts
	Sonnenberg
	Vigil
	Schwartz
	Fischer

YES: 0 NO: 0 EXC: 1 ABS: 0 FINAL ACTION: Pass Without Objection

01:14 PM

Representative Fischer recommended that a bill be drafted to authorize FLEX water markets as an alternative transfer mechanism (similar to HB 14-1026) and that the bill address anti-speculation issues discussed at the September 4 meeting of the Water Resources Review Committee.


BILL:	Requests for Draft Legislation
TIME:	01:15:58 PM
MOVED:	Fischer
MOTION:	Moved to draft a bill to authorize FLEX water markets. The motion passed without objection.
SECONDED:	Hodge
		VOTE
	Brophy
	Coram
	Hodge
	Jones
	Mitsch Bush	Excused
	Roberts
	Sonnenberg
	Vigil
	Schwartz
	Fischer

YES: 0 NO: 0 EXC: 1 ABS: 0 FINAL ACTION: Pass Without Objection

01:23 PM

The committee adjourned.