Final
STAFF SUMMARY OF MEETING
WATER RESOURCES REVIEW COMMITTEE
Date:
09/07/2005
ATTENDANCE
Time:
09:07 AM
to
04:05 PM
Butcher
X
Entz
X
Place:
SCR 356
Fitz-Gerald
X
Grossman
E
This Meeting was called to order by
Hodge
X
Senator
Isgar
Hoppe
*
Taylor
X
This Report was prepared by
White
E
David Beaujon
Curry
X
Isgar
X
X = Present, E = Excused, A = Absent, * = Present after roll call
Bills Addressed:
Action Taken:
Third Meeting
-
09:10 AM - Call to Order
The Chairman called the meeting to order.
09:10 AM -- Update on Proposed Water Projects in the Upper Colorado River Basin
Don Carlson, Northern Colorado Water Conservancy District (NCWCD), described the Windy Gap Project that is located on the Colorado River, and owned by the Municipal Subdistrict of the NCWCD (Attachment A). Completed in 1985, the projects consists of a small reservoir with a pumping plant that delivers water to Granby Reservoir for use by municipalities in the Northern Colorado Water Conservancy District. Mitigation for the project's impact in the basin included financial support for the construction of the Wolford Mountain Reservoir near the Town of Kremling and water for the Middle Park Water Conservancy District that includes all of Summit and Grand Counties. The Municipal Subdistrict's water right is also subordinate to future municipal and agricultural demand in the Middle Park Water Conservancy District. Mr. Carlson explained that due to the project's junior water right and limited storage, it provides little water during dry and wet years. The Windy Gap Firming Project does will help enure that the project can more reliably provide 30,000 acre feet (AF) per year for the Subdistrict and the Middle Park Water Conservancy District. Historical diversions for the project currently range from 0 AF through 64,000 AF in a year. Mr. Carlson explained that alternatives for increasing the project's reliability, including additional storage, are being studied. The draft environmental impact statement for the project is scheduled for completion later this year and he estimated that the project could be completed by 2010.
09:39 AM
James Newberry, Grand County Commissioner, described the Upper Colorado River Basin Study (UPCO) that assessed the effects of increased water diversions from the basin including the Windy Gap Firming Project and Denver Water's North End Firming Project. He explained that Grand County has been working with Denver Water, NCWCD, the U.S. Bureau of Reclamation, and the Army Corps of Engineers to ensure that the cumulative impacts from the two projects on the Fraser River are addressed. Grand County is also working with Summit and Eagle Counties to address the broader impacts from the two projects on the Upper Colorado River Basin. Commissioner Newberry expressed concern about a proposed reservoir for the Windy Gas Firming Project on the east slope and its ability to comply with Senate Document 80 that authorized the Colorado Big Thompson Project. He also expressed concern about the lack of feasible water storage project in Grand County to replace depletions caused by the Windy Gap Firming Project. In response to a question from the committee, Commissioner Newberry explained that the population in Grand County is projected to double in next decade.
10:01 AM
Dave Little, Denver Water, explained that Denver Water has been working with Summit and Grand County to address water needs identified in the UPCO Study. Summit and Grand County invited other Colorado River Basin interests, including Eagle County, Grand Junction, and the Colorado River Water Conservation District to develop a broader solution to address water supply challenges in the basin. The group has asked Denver Water to consider a revenue sharing program that would provide Colorado River water in exchange for a portion of the revenue raised from the sale of this water to front range water users. One project being considered by Denver Water is called the Green Mountain Pump Back. This project would include a new reservoir near the Town of Wolcott to hold water currently stored in Green Mountain Reservoir that is used to offset impacts from the Colorado-Big Thompson Project. The Green Mountain Reservoir could then be used to capture water that would be pumped up to Dillon Reservoir and delivered to Denver or other Front Range users. Mr. Little explained that Denver Water has begun discussing this option with the Bureau of Reclamation that owns Green Mountain Reservoir and the Northern Colorado Water Conservancy District that receives water from the Colorado-Big Thompson Project. Discussion followed about the potential impact of Green Mountain Reservoir Pump Back project on downstream users including irrigators and rafters.
10:13 AM
Mr. Little explained that a beneficiary of the project may include users in Douglas County. Currently, this area is reliant on non-renewable ground water from Denver Basin Aquifer that is rapidly being depleted. Commissioner Newberry explained that western Colorado recognizes the need for additional water on the Front. Consequently, it has begun to explore options to provide water for this area that may also provide benefits to the west slope. Mr. Little expressed concern about extending Denver Water's service area to include rapidly growing Front Range areas that need additional water.
10:23 AM -- Design and Construction of White Water Recreation Parks
Gary Lacy, Recreation Engineering and Planning, explained that his company has participated in the construction of over 40 white water recreations facilities in Colorado and other states including facilities in Golden, Boulder, Lyons, Breckenridge, Vail, Pueblo, Gunnison, Salida, Estes Park, Pagosa Springs, Denver, and Steamboat Springs. Other Colorado communities are currently designing white water facilities including Longmont, Pallisade, Frsico, and Silverthorne. He explained that demand for white water parks is growing rapidly, especially among freestyle boaters who surf and perform tricks on waves and other water features. In addition to kayakers and rafter, white water parks are used for other recreational activities including wave boards, boogie boards, surf boards, and inflatable kayaks. Mr. Lacy identified the factors considered when designing a white water park including the impact on fisheries, ability to withstand floods, and public safety. He also expressed concern about amending the law to require such facilities include sides and a bottom and limiting the amount of RICD flows. He also expressed concern about limiting RICD uses to specific activities because advances in white water technology may not be anticipated by today's law makers.
10:49 AM
The committee recessed.
11:11 AM - Colorado Water Conservation Board's Role in RICD Review Process
Barbara Biggs, Chair of the Colorado Water Conservation Board (CWCB), explained that the CWCB is charged with representing broader statewide interests in the RICD review process such as promoting the use of Colorado's compact entitlement (Attachment B). She expressed concern that RICD applicants may be more focussed on local benefits of a proposed white water park. Consequently, the CWCB often finds itself in water court opposing RICDs that have general support of local water interests. She explained that state law charges the board with determining whether an RICD application complies with statutory requirements. However, the CWCB has struggled to
understand the meaning of the statutory limit on the amount of an RICD.
11:16 AM
Rod Kuharich, CWCB Director, summarized the major findings of the Colorado Supreme Court in the
Colorado Water Conservation Board v. Upper Gunnison River Water Conservancy District
. He explained that the decision provides guidance for the CWCB and the water court in determining the minimum amount necessary of water for an RICD.
He also described the CWCB's statutory responsibility in the RICD review process and expressed concern about the amount of water claimed in some RICD applications. Mr. Kuharich explained a flow of 100 cubic feet per second (CFS) would provide approximately enough water to supply the annual demand of approximately 1,000 people. The CWCB has spent approximately $80,000 on the RICD review process since SB 05-216 was enacted. He explained that the review process could be streamlined if the water court is required to assume that the CWCB's findings are presumptively valid. Under such a standard, the court could overturn the CWCB's findings only if it determines that the CWCB's findings are arbitrary and capricious.
11:39 AM
Mr. Kuharich responded to questions from committee regarding flow limits on RICDs and improving the RICD review process. Ms. Biggs proposed amendments to clarify the meaning of "minimum amount necessary" for an RICD, to encourage cooperation between applicants and the CWCB, and to limit calls for RICDs when they will not be used. She also proposed amendments to address the priority of RICDs during droughts and changes to streamline the RICD review process. Committee discussion followed about projected water demand, the definition of droughts, and the potential impact of RICDs on future water rights exchanges. It also discussed potential amendments to allow the CWCB to participate in settlement negotiations in RICD litigation and the potential benefit of allowing the water court to retain jurisdiction over RICDs.
12:06 PM
The committee recessed.
01:41 PM - Panel Discussion on RICDs
Glenn Porzak, Porzak, Browning, and Bushong, LLP, responded to the September 1, 2005, letter from the Chairman and Vice-chair of the Water Resources Review Committee concerning potential amendments to the RICD law (Attachment C). For example, he explained that legislation to define valid RICD control structures and specify the types of recreation that may qualify for an RICD could be helpful. However, he expressed concern about legislation to impose the same flow limit on all RICDs rather than flow limits that reflect the hydrology of the RICD's stream.
Mr. Porzak also explained that the State Engineer has adequate authority to address wasteful calls for RICDs and that the water court is able to address
de
minimis
impacts to an RICD.
He spoke in support of limiting the CWCB's role in the RICD review process to making recommendations to water court or acting as an objector in such litigation. In response to a question from the committee, he described provisions of the City of Golden's RICD that protect future water development by upstream communities on Clear Creek.
02:05 PM
Cindy Covell identified RICD litigation she has participated in and responded to questions in the September 1, 2005, letter from the Chairman and Vice-chair of the Water Resources Review Committee. For example, she commented on the need for legislation to further specify the types of recreation that may qualify for an RICD and urged the committee to consult with RICD design engineers prior to adopting such requirements. She also expressed concern about legislation to impose the same flow limit on all RICDs rather than flow limits that reflect the hydrology of the RICD's stream. Ms. Covell explained that some RICDs are limited to certain times of the day and commented on the need to define when RICD calls are wasteful. She also expressed concern about prohibiting calls for RICD if less than the full appropriation is available and limiting the location of RICDs near the state line. To streamline the RICD review process, Ms Covell recommended that the CWCB role be limited to acting as an opposer in water court litigation. Mr. Porzak and Ms. Covell responded to questions from the committee regarding
de minimis
impacts to RICDs and the need for an RICD applicant to prove that the amount of water being requested in an RICD application is justified.
02:31 PM
Drew Peternell, Trout Unlimited, explained that RICDs can provide incidental benefits to fisheries and expressed support for limiting the role of the CWCB in the RICD review process to an objector in water court litigation. He expressed concern about other potential changes to the RICD law. For example, he spoke in opposition to requiring RICD control structures that may impact fisheries and said that additional limits on the amount of an RICD is unnecessary. RICDs should only be limited to forms of recreation that can beneficially use the water that is claimed. Current law also is capable of addressing wasteful calls. Mr. Peternell also expressed concern about limiting calls for RICD during water shortages and the location of RICDs near the state line.
02:46 PM
Dave Robbins, Hill & Robbins, explained that SB 01-216 provides broad authority to the CWCB in reviewing RICDs and determining whether the amount requested by an applicant is the minimum amount necessary. Mr. Robbins explained that there is disagreement about the meaning the statutory limits on the amount of an RICD and recommended legislation to clarify this issue. In addition to the water court, such legislation would aid in the administration of RICDs by the state engineer. Mr. Robbins expressed concern about non consumptive uses near state line due to potential impacts on Colorado's ability to use its compact entitlement and address changing needs for water upstream of the nonconsumptive use. In response to a question from the committee, he explained that the CWCB could benefit from legislation that provides more directions to guide the RICD review process.
03:00 PM
Ms. Biggs commented on a volumetric limit on RICDs and Mr. Porzak explained that RICDs are filed to protect stream flows from future diversions. Ms. Covell explained that current RICDs include provisions that limit calls during droughts or other provisions that enable future domestic demands. She expressed concern about adopting policies that grant preference to consumptive uses over non-consumptive uses, such as RICDs. Mr. Porzak explained local governments typically attempt to protect broader public interests in their RICD applications. Ms. Covell explained RICDs do not pose a significant threat to agricultural water rights because such rights are senior to RICDs and are located downstream from the RICD diversion. Rather, RICDs can limit the ability of an owner of agricultural water right to transfer it to a municipality upstream of the RICD. In response to a question from the committee, Mr. Robbins expressed concern about prohibiting calls for RICDs when flows fall below an RICD's full appropriation. Rather, applicants should file for a range of flows that provide reasonable recreational experiences, similar to the Town of Silverthorne's RICD application.
03:32 PM -- Public Testimony
Mick Ireland, Pitkin County, explained that tourism in Pitkin and Eagle Counties provides significant economic benefits to the rest of the state. He recommended that any limit on RICDs be based on hydrologic conditions and expressed concern about subordinating RICDs to future consumptive uses. He also expressed concern about requiring that control structures have sides and a bottom.
03:43 PM
Shanna Koenig, Northwest Council of Governments' Water Quality and Quantity Committee, summarized provisions of a draft report concerning RICD water rights agreements (Attachment D).
03:46 PM -- Upcoming Tours and Meetings of the Water Resources Review Committee
The Committee discussed combining a tour and meeting on September 28, 2005. The meeting will be from 9 AM and the tour will begin at 11:30 AM. The Chairman cancelled the proposed tour on the afternoon of September 27.
03:54 PM -- Request for Draft Legislation
Chairman Isgar described the deadlines and voting requirements for recommendations of the Water Resources Review Committee to the Legislative Council.
BILL:
Third Meeting
TIME:
03:54:48 PM
MOVED:
Curry
MOTION:
Moved to authorize the Chairman to work with Staff to draft a bill on RICDs for consideration by the Water Resources Review Committee prior to the Legislative Council's deadlines. The motion passed without objection.
SECONDED:
VOTE
Butcher
Entz
Fitz-Gerald
Grossman
Excused
Hodge
Hoppe
Taylor
White
Excused
Curry
Isgar
Not Final
YES:
0
NO:
0
EXC:
2
ABS:
0
FINAL ACTION:
Pass Without Objection
03:59 PM
Senator Entz suggested that the committee may want to amend the law regulating wells used to irrigate lawns. However, no motion was offered.
04:03 PM
Meeting adjourned.