Second Regular Session Seventieth General Assembly STATE OF COLORADO INTRODUCED LLS NO. 16-0559.01 Thomas Morris x4218 HOUSE BILL 16-1314 HOUSE SPONSORSHIP Saine and Humphrey, Neville P., Wist SENATE SPONSORSHIP Marble, House Committees Senate Committees Agriculture, Livestock, & Natural Resources A BILL FOR AN ACT Concerning treatment of rising groundwater levels as replacing groundwater depletions in water division 1. 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.) Due to rising groundwater levels since 2006, the bill specifies that the state engineer and water judges must treat all out-of-priority groundwater depletions from agricultural wells occurring in water districts 1 through 6 and 64 in water division 1 that accrued between March 15, 1974, and December 31, 2014, as having been fully replaced. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. Legislative declaration. (1) The general assembly hereby: (a) Finds that: (I) The state engineer has existing authority, pursuant to the futile call doctrine, to not require a junior appropriator to curtail a diversion if doing so would not be effective in delivering water to a senior appropriator, and that this authority is ultimately based on the goal of maximizing the beneficial use of water; but (II) The state engineer does not currently have authority to forgo requiring the replacement of water that is specified in a decreed plan of augmentation or substitute water supply plan, even if current stream and aquifer conditions indicate that no injury would result from not requiring the needless replacement; and (III) Consequently, current water administration is resulting in the delivery of excess amounts of water to Nebraska on the main stem of the South Platte river above and beyond what the South Platte river compact requires; (b) Determines that: (I) Localized flooding has occurred in division 1, due in large part to high groundwater levels that have been caused by the curtailment of pumping and the replacement of depletions beyond the level needed to avoid material injury; (II) These high groundwater levels have caused significant increases in the amount of water evaporated from the soil surface and transpiration from vegetation, which is a type of prohibited waste; and (III) The increasing reliability of data on current stream and aquifer conditions resulting from additional studies, monitoring, and the development of the South Platte river decision support system indicate that at some point it will be in the public interest to provide the state engineer with authority to temporarily supercede needless replacement obligations; and (c) Declares that it is in the public interest to maximize the beneficial use of both groundwater and surface water by not requiring the replacement of water when the replacement is not needed. SECTION 2. In Colorado Revised Statutes, 37-92-305, amend (8) (b) as follows: 37-92-305. Standards with respect to rulings of the referee and decisions of the water judge. (8) (b) (I) Except as specified in subparagraph (II) of this paragraph (b), as to decrees for plans for augmentation entered in water division 1 on or after August 5, 2009, the plan shall not require the replacement of out-of-priority depletions currently affecting the river caused by pumping that occurred prior to March 15, 1974. In the case of an amended plan for augmentation applied for pursuant to this paragraph (b), the water judge may review all of the terms and conditions of the plan. (II) Notwithstanding any provision to the contrary in any decree for a plan for augmentation or other requirement to replace groundwater in water districts 1 through 6 and 64 in water division 1 that applies to a well that pumps water that has been decreed for agricultural use, the state engineer and the water judges shall deem all out-of-priority groundwater depletions from a well that pumps water that has been decreed for agricultural use occurring in water districts 1 through 6 and 64 in water division 1 that accrued between March 15, 1974, and December 31, 2014, to have been fully replaced by rising groundwater levels since January 1, 2006. SECTION 3. 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 groundwater depletions replaced on or after the applicable effective date of this act.