Second Regular Session Seventieth General Assembly STATE OF COLORADO INTRODUCED LLS NO. 16-0556.01 Thomas Morris x4218 SENATE BILL 16-128 SENATE SPONSORSHIP Hodge, HOUSE SPONSORSHIP Arndt, Senate Committees House Committees Agriculture, Natural Resources, & Energy A BILL FOR AN ACT Concerning the ability to amend limited terms that govern the operation of a water right without reopening all terms governing the previous approval of the operation. Bill Summary (Note: This summary applies to this bill as introduced and does not reflect any amendments that may be subsequently adopted. If this bill passes third reading in the house of introduction, a bill summary that applies to the reengrossed version of this bill will be available at http://www.leg.state.co.us/billsummaries.) The bill allows for amendments to decreed plans for augmentation (sections 1 and 2 of the bill) and approved substitute water supply plans (section 3), or specific portions thereof, without reopening the entire decree or approval. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. In Colorado Revised Statutes, 37-92-304, amend (6) as follows: 37-92-304. Proceedings by the water judge. (6) (a) Any decision of the water judge as specified in subsection (5) of this section dealing with a change of water right, implementation of a rotational crop management contract, or a plan for augmentation shall must include the condition that the approval of such the change, contract, or plan shall be is subject to reconsideration by the water judge on the question of injury to the vested rights of others for such period after the entry of such the decision as is necessary or desirable to preclude or remedy any such injury. Such The water judge shall determine the condition setting forth the period allowed for reconsideration shall be determined by the water judge after making specific findings and conclusions including, when applicable, the historical use to which the water rights involved were put, if any, and the proposed future use of the water rights involved. The water judge shall specify such the period in the decision, but the period may be extended upon further decision by the water judge that the nonoccurrence of injury shall has not have been conclusively established. (b) The water judge, sua sponte, or any party may invoke retained jurisdiction in order to modify a decreed plan for augmentation to reflect new technical information affecting the operation of the decreed augmentation plan. (c) Any The decision may contain any other provision that the water judge deems proper in determining the rights and interests of the persons involved. All decisions of the water judge, including decisions as to the period of reconsideration and extension thereof, shall become a judgment and decree as specified in this article and be are appealable upon entry, notwithstanding conditions subjecting the decisions to reconsideration on the question of injury to the vested rights of others as provided in this subsection (6). SECTION 2. In Colorado Revised Statutes, 37-92-305, amend (8) (c) as follows: 37-92-305. Standards with respect to rulings of the referee and decisions of the water judge. (8) (c) (I) A plan for augmentation shall must be sufficient to permit the continuation of diversions when curtailment would otherwise be required to meet a valid senior call for water, to the extent that the applicant shall provide replacement water necessary to meet the lawful requirements of a senior diverter at the time and location and to the extent the senior would be deprived of his or her lawful entitlement by the applicant's diversion. (II) A proposed plan for augmentation that relies upon a supply of augmentation water that, by contract or otherwise, is limited in duration shall not be denied solely upon the ground that the supply of augmentation water is limited in duration, if the terms and conditions of the plan prevent injury to vested water rights. Said The terms and conditions shall must require replacement of out-of-priority depletions that occur after any groundwater diversions cease. Decrees approving plans for augmentation shall must require that the state engineer curtail all out-of-priority diversions, the depletions from which are not so replaced as to prevent injury to vested water rights. (III) A plan for augmentation may provide procedures to allow: (A) Additional or alternative sources of replacement water, including water leased on a yearly or less frequent basis, to be used in the plan after the initial decree is entered if the use of said the additional or alternative sources is part of a substitute water supply plan approved pursuant to section 37-92-308 or if such the sources are decreed for such use; or (B) An amendment of the plan or specific portions of the plan to reflect new technical information affecting the operation of the decreed augmentation plan. An amendment reopens only the portion of the decree to which it applies and does not reopen the entire plan for augmentation. SECTION 3. In Colorado Revised Statutes, 37-92-308, amend (5) (a) (IV) (C); and add (4) (d) as follows: 37-92-308. Substitute water supply plans - special procedures for review - water adjudication cash fund - legislative declaration - repeal. (4) (d) After the state engineer has approved a request for a substitute water supply plan, the applicant may seek an amendment to one or more specific portions of the plan based on new technical information or operational experience. An amendment reopens only that portion of the plan to which it applies and does not reopen the entire substitute water supply plan. (5) (a) Beginning January 1, 2002, for new water use plans involving out-of-priority diversions or a change of water right, if no application for approval of a plan for augmentation or a change of water right has been filed with a water court and the water use plan or change proposed and the depletions associated with such the water use plan or change will be for a limited duration not to exceed five years, except as otherwise provided in subparagraph (II) of paragraph (b) of this subsection (5), the state engineer may approve such plan or change as a substitute water supply plan if the following conditions are met: (IV) (C) The state engineer shall impose such terms and conditions as are necessary to ensure that these standards are met. Replacement of depletions may be made during the limited duration approved, not to exceed five years except as specified in subparagraph (II) of paragraph (b) of this subsection (5), subject to the state engineer's determination of the dry-year yield of the replacement supply. In making the determinations specified in this subparagraph (IV), the state engineer shall is not be required to hold any formal hearings or conduct any other formal proceedings, but may conduct a hearing or formal proceeding if the state engineer finds it necessary to address the issues. SECTION 4. Act subject to petition - effective date - applicability. (1) This act takes effect at 12:01 a.m. on the day following the expiration of the ninety-day period after final adjournment of the general assembly (August 10, 2016, if adjournment sine die is on May 11, 2016); except that, if a referendum petition is filed pursuant to section 1 (3) of article V of the state constitution against this act or an item, section, or part of this act within such period, then the act, item, section, or part will not take effect unless approved by the people at the general election to be held in November 2016 and, in such case, will take effect on the date of the official declaration of the vote thereon by the governor. (2) This act applies to conduct occurring on or after the applicable effective date of this act.