Water Resources Review Committee (08/19/2015)

Final
STAFF SUMMARY OF MEETING

WATER RESOURCES REVIEW COMMITTEE

Date:	08/19/2015	ATTENDANCE

Time:	09:01 AM to 10:38 AM	Arndt	X
		Baumgardner	X
Place:	Vail Cascade Resort	Becker J.	X
		Coram	X
This Meeting was called to order by		Hodge	*
	Senator Roberts	Jones	X
		Mitsch Bush	X
This Report was prepared by		Sonnenberg	X
	David Beaujon	Vigil	X
		Roberts	X
		X = Present, E = Excused, A = Absent, * = Present after roll call

Bills Addressed:		Action Taken:
Call to Order and Introductions Definition of Waters of the United States Agricultural Water Use Efficiency Update on Proposed Ballot Measures Flexible Water Markets Requests for Draft Legislation		- - - - - -

09:01 AM -- Call to Order and Introductions

Senator Roberts, Chair of the Water Resources Review Committee, called the meeting to order and the members of the committee introduced themselves and identified water issues of interest.

09:18 AM -- Definition of Waters of the United States

Mark Pifher, Colorado Springs Utilities, provided an overview of the final rule concerning waters of the United States under the federal Clean Water Act (CWA) (Attachment A). On July 29, 2015, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) published a final rule in the Federal Register defining the scope of waters protected under the CWA. In part, this rule seeks to codify recent U.S. Supreme Court decisions in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, and Rapanos v. United States. The rule is scheduled to take effect August 28, 2015. Mr. Pifher expressed concerns about the potential impact of the new rule on operators of irrigation ditches and other water users. Mr. Pifher identified potential implications of the new rule including additional permit requirements, more reviews under the National Environmental Policy Act, and additional expenses. He also identified plaintiffs in recent litigation challenging the new rule including states, the Farm Bureau, homebuilders, and other affected parties.

Attachment A.pdf

09:40 AM -- Agricultural Water Use Efficiency

Chris Treese, Colorado River Water Conservation District, provided an update on implementation of legislation concerning agricultural water use efficiency. He explained that in 2013, the General Assembly passed Senate Bill 13-019 concerning the promotion of water conservation measures. This law restricts a water judge from determining a water user's historical consumptive use in Water Divisions 4, 5, or 6 based on water use reductions resulting from enrollment in a federal land conservation program; participation in certain water conservation programs; participation in an approved land fallowing program or to provide water for compact compliance; or participation in a water banking program. He explained that the Colorado River Water Conservation District recently approved an application to allow irrigators in Grand County, working with the Colorado Water Trust, to reduce their water diversions from Willow Creek to benefit the health of the stream. He also explained that the General Assembly has considered, but not passed, legislation to allow the transfer of the nonconsumptive portion of a water right obtained from certain water efficiency measures. For example, House Bill 15-1222 would have allowed the Colorado Water Conservation Board to acquire water rights for instream flow use on a pilot project basis without the need for a water court-decreed change of water right. These water rights would have represented the savings attained by implementing a limited number of nonconsumptive water efficiency pilot projects. Mr. Treese also identified potential challenges and questions about enacting legislation to allow the transfer of the nonconsumptive portion of a water right.

09:46 AM -- Update on Proposed Ballot Measures

Floyd Ciruli, Colorado Water Stewardship Project, explained that the project was created by the Colorado Water Congress in 2013 to ensure that its members and water stakeholders from around the state are prepared for ballot initiatives that would disrupt ownership and management of Colorado’s water resources, such as the proposed measure to impose the public trust doctrine in Colorado (Attachment B). He discussed the initiative process and expressed concern about the process that resulted in the public trust measures being proposed and the potential cost of promoting and opposing these measures. He also described the provisions of House Bill 15-1057 that requires a fiscal impact assessment for initiatives that must be included on each ballot petition, and expressed concern about initiatives that may be placed on the 2016 ballot including a measure to provide greater local control over oil and gas development and to establish the public trust doctrine.

Attachment B.pdf

10:03 AM

Mr. Ciruli responded to questions from the committee concerning the status of Initiative 2015-16 #4 concerning public trust resources and possible measures to provide greater local control over oil and gas development.

10:05 AM -- Flexible Water Markets

Andrew P. Jones, Lawrence Jones Custer Grasnick LLP, distributed the reengrossed version of House Bill 15-1038 concerning flexible water markets (Attachment C) and explained current water law concerning water exchanges, substitute water supplies, and changes of water rights. He also explained how these water rights are administered and identified measures to protect other water rights from water exchanges, substitute water supplies, and changes of water rights. He also discussed the requirements for obtaining a priority date for a water exchange. He summarized the provisions of House Bill 15-1038 that was postponed indefinitely in the Senate Committee on Agriculture, Natural Resources, & Energy. This bill would have excluded certain water use, called flex use, from the anti-speculation doctrine and created a process for approval of a flex use change-in-use decree and a flex use substitute water supply plan. It would have allowed a holder of an irrigation water right who seeks to implement

fallowing, regulated deficit irrigation, reduced consumptive use cropping, or other alternatives to the permanent dry-up of irrigated lands, to apply for a change in use to any beneficial use, without designating the specific beneficial use to which the water will be applied.

Attachment C.pdf

10:23 AM

Mr. Jones responded to questions from the committee about the provisions of HB 15-1038 and identified concerns with the bill that may have lead to its being postponed indefinitely. He also discussed efforts to address these concerns and possible legislation to authorize flexible water markets. He also responded to questions from the committee about the potential benefits of flexible water markets and how the legislation may be implemented, and explained how additional storage may enable flexible water use.

10:32 AM -- Requests for Draft Legislation

Representative Coram moved to draft legislation to streamline the permitting process for water supply projects. The motion was adopted without objection.

10:34 AM

Senator Roberts moved to draft legislation to limit the liability of persons who address environmental impacts of abandoned mines, also known as good samaritan legislation. The motion was adopted without objection.

10:38 AM

Representative Arndt moved to draft legislation to allow flexible water markets. The motion was adopted without objection.

10:38 AM

The meeting adjourned.