HOUSE Amended 2nd Reading February 23, 2007First Regular Session Sixty-sixth General Assembly STATE OF COLORADO ENGROSSED This Version Includes All Amendments Adopted on Second Reading in the House of Introduction LLS NO. 07-0511.01 Bob Lackner HOUSE BILL 07-1036 HOUSE SPONSORSHIP Sonnenberg, SENATE SPONSORSHIP Shaffer, House Committees Senate Committees Agriculture, Livestock, & Natural Resources A BILL FOR AN ACT Concerning restrictions on the ability of governmental bodies to acquire specified water rights through the exercise of the power of eminent domain. Bill Summary (Note: This summary applies to this bill as introduced and does not necessarily reflect any amendments that may be subsequently adopted.) Prohibits the state and specified political subdivisions otherwise possessing the power of eminent domain as provided by law from exercising such power that results in the acquisition of appropriated water rights. Specifies that nothing in the act shall be construed to affect the lawful exercise of the power of eminent domain pursuant to which any water rights acquired are incident to the ownership of the overlying surface interests in the property being condemned. Makes conforming amendments. Defines a term. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. 37-90-103, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SUBSECTION to read: 37-90-103. Definitions - repeal. As used in this article, unless the context otherwise requires: (11.5) "Political subdivision" means a county, city and county, city, town, service authority, school district, local improvement district, law enforcement authority, city or county housing authority, any special district such as water, sanitation, fire protection, metropolitan, irrigation, or drainage, or any other kind of municipal, quasi-municipal, or public corporation organized pursuant to law. For purposes of this subsection (11.5), "political subdivision" shall include any city, town, or city and county that has chosen to adopt a home rule charter pursuant to the provisions of article XX of the state constitution. SECTION 2. 37-90-137, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SUBSECTION to read: 37-90-137. Permits to construct wells outside designated basins - fees - permit no ground water right - evidence - time limitation - well permits - repeal. (15) Notwithstanding any other provision of this article, neither the state nor any political subdivision otherwise possessing the power of eminent domain as provided by law shall exercise such power that results in the acquisition of appropriated water rights. SECTION 3. 38-1-101 (5) (b), Colorado Revised Statutes, is amended, and the said 38-1-101 is further amended BY THE ADDITION OF A NEW SUBSECTION, to read: 38-1-101. Compensation - public use - commission - jury - court - prohibition on elimination of nonconforming uses or nonconforming property design by amortization - prohibition on the exercise of eminent domain to acquire certain water rights - limitation on extraterritorial condemnation by municipalities - definitions. (3.5) (a) Notwithstanding any other provision of articles 1 to 7 of this title, neither the state nor any political subdivision otherwise possessing the power of eminent domain as provided by law shall exercise such power that results in the acquisition of appropriated water rights. (b) In connection with the lawful exercise of the power of eminent domain by home rule municipalities, the term "water works"as contained in section 1 of article XX of the state constitution shall not be construed to include appropriated water rights. (5) For purposes of this section, unless the context otherwise requires: (b) "Political subdivision" means a county; city and county; city; town; service authority; school district; local improvement district; law enforcement authority; urban renewal authority; city or county housing authority; water, sanitation, fire protection, metropolitan, irrigation, drainage, or other special district; or any other kind of municipal, quasi-municipal, or public corporation organized pursuant to law. For purposes of this paragraph (b), "political subdivision" shall include any city, town, or city and county that has chosen to adopt a home rule charter pursuant to the provisions of article XX of the state constitution. SECTION 4. 38-1-202, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SUBSECTION to read: 38-1-202. Governmental entities, corporations, and persons authorized to use eminent domain - defintions. (3) (a) Notwithstanding any other provision of this section, neither the state nor any political subdivision otherwise possessing the power of eminent domain as provided by law shall exercise such power that results in the acquisition of appropriated water rights. (b) For purposes of this subsection (3), "political subdivision" means a county, city and county, city, town, service authority, school district, local improvement district, law enforcement authority, city or county housing authority, any special district such as water, sanitation, fire protection, metropolitan, irrigation, or drainage, or any other kind of municipal, quasi-municipal, or public corporation organized pursuant to law. For purposes of this paragraph (b), "political subdivision" shall include any city, town, or city and county that has chosen to adopt a home rule charter pursuant to the provisions of article XX of the state constitution. SECTION 5. 27-1-103 (2), Colorado Revised Statutes, is amended to read: 27-1-103. Duties of executive director - governor acquire water rights. (2) On behalf of the state of Colorado, the governor is authorized to acquire water and water rights for the operation of the Colorado mental health institute at Fort Logan. Title to such property may be acquired in fee simple absolute by purchase or donation or the exercise of the power of eminent domain through condemnation proceedings in accordance with law from funds made available by the general assembly. SECTION 6. 29-1-204.2, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SUBSECTION to read: 29-1-204.2. Establishment of separate governmental entity to develop water resources, systems, facilities, and drainage facilities. (10) Notwithstanding any other provision of this section, no political subdivision otherwise possessing the power of eminent domain as provided by law shall exercise such power that results in the acquisition of appropriated water rights. For purposes of this section, "municipalities" and "political subdivisions" shall include any city, town, or city and county that has chosen to adopt a home rule charter pursuant to the provisions of article XX of the state constitution. SECTION 7. 31-15-708 (1) (b), Colorado Revised Statutes, is amended, and the said 31-15-708 is further amended BY THE ADDITION OF A NEW SUBSECTION, to read: 31-15-708. Water and water systems. (1) The governing body of each municipality has the power: (b) (I) Except as otherwise provided in this paragraph (b), to take water in sufficient quantity, for the purpose provided in paragraph (a) of this subsection (1), from any stream, creek, gulch, or spring in this state. If the taking of such water in such quantity materially interferes with or impairs the vested right of any person residing upon such creek, gulch, or stream or doing any milling or manufacturing business thereon, the governing body shall first obtain the consent of such person or acquire the right of domain by condemnation as prescribed by law and make full compensation or satisfaction for all the damages thereby occasioned to such person. (II) When it is deemed necessary by any municipality to enter upon or take private property for any of the uses set forth in this section, the property shall be examined and appraised and the damages thereon assessed. The proceedings shall be in all respects the same as provided by articles 1 to 7 of title 38, C.R.S., for the taking of private property for public or private use. (III) No municipality otherwise possessing the power of eminent domain as provided by law shall exercise such power that results in the acquisition of appropriated water rights. (2) For purposes of this section, "municipality" shall include any city, town, or city and county that has chosen to adopt a home rule charter pursuant to the provisions of article XX of the state constitution. SECTION 8. 31-35-101 (1) (c), Colorado Revised Statutes, is amended, and the said 31-35-101 is further amended BY THE ADDITION OF A NEW SUBSECTION, to read: 31-35-101. Powers - canals - water rights - diversion - ratification of prior rights. (1) Any municipality in this state, for the purpose of supplying said municipality and the inhabitants thereof with water, has the power under this part 1: (c) To purchase acquire water and water rights in all cases where condemnation would lie to obtain the same under section 31-15-708 (1) (b) by means other than by the exercise of the power of eminent domain; (4) For purposes of this section, "municipality" shall include any city, town, or city and county that has chosen to adopt a home rule charter pursuant to the provisions of article XX of the state constitution. SECTION 9. Repeal. Part 2 of article 6 of title 38, Colorado Revised Statutes, is repealed. SECTION 10. Effective date - applicability. (1) This act shall take effect September 1, 2007. (2) However, if a referendum petition is filed against this act or an item, section, or part of this act during the 90-day period after final adjournment of the general assembly that is allowed for submitting a referendum petition pursuant to article V, section 1 (3) of the state constitution, then the act, item, section, or part, shall not take effect unless approved by the people at a biennial regular general election and shall take effect on the date specified in subsection (1) or on the date of the official declaration of the vote thereon by proclamation of the governor, whichever is later. (3) The provisions of this act shall apply to eminent domain actions commenced on or after the applicable effective date of this act.