2017 #coleg: SB17-036 (Appellate Process Concerning Groundwater Decisions) now #Colorado law

Groundwater movement via the USGS

From The Grand Junction Daily Sentinel (Charles Ashby):

Gov. John Hickenlooper signed several bills into law Tuesday, including one that GOP Sens. Ray Scott and Don Coram have been working on for a few years now.

That measure, SB36, is designed to make it harder for land developers to drag farmers and ranchers through years of court proceedings over groundwater rights disputes.

Under current law, such disputes are handled by the Colorado Groundwater Commission, but appeals to district court can include new evidence not seen by the commission.

The bill gives district judges more discretion to decide what new evidence can be heard in those appeals.

Some opposition to the bill fell away when it was amended to include language that allowed new evidence to be included in an appeal if that evidence was wrongly excluded or could not “in good faith” be presented to the commission.

Scott of Grand Junction and Coram of Montrose said they don’t buy opponents’ contention that the definition of “in good faith” is so broad that it opens the door to any evidence being presented, as is the case now.

“It’s held to a higher legal standard,” Coram said.

“The rules of evidence are very tough,” Scott added. “If they can prove evidence was stuffed in a box somewhere in the basement for the last 50 years and was just found or something like that, it’s still a high bar to reach.”

The two lawmakers said the bill fixes a long-standing problem for poorer ranchers and farmers who found themselves spending more time in court battling well-heeled developers over those water rights.

The Colorado Farm Bureau said the bill will help ensure a fairer and more equitable appeals process.

2017 #coleg: HB17-1289 (State Engineer Rules Historical Consumptive Use)

Flood irrigation in the Arkansas Valley via Greg Hobbs

From The Durango Herald (Luke Perkins):

House Bill 1289, which would extend a pilot program that streamlines the assessment of consumptive use and could ease the financial impact on water rights owner by simplifying the process, was heard by the House Agriculture, Livestock and Natural Resources Committee Monday. It was laid over until next week while lawmakers consider the impacts of the program.

Rep. Chris Hansen, D-Denver, said the program has proven to be a way to save money on the front end for water rights users in the Arkansas River Valley, where it was first implemented.

But this comes at a cost in the overall amount they can charge for their water rights, as the methods used generally err on the side of caution and underestimate the Historic Consumptive Use by 10-15 percent, Hansen said. “This is in a sense the horseshoes and hand grenades approach.”

In a short term transaction that is not always a drawback beause of the amount saved by not undergoing a full analysis…

Some Republican members of committee didn’t necessarily agree with that and expressed concerns that this would leave farmers losing out on the value of their rights.

They were concerned that it would place additional burden of proof on owners if they believed they didn’t receive a fair share because of the conservative nature of the analysis as opposed to buyers having to prove the engineering analysis was over valuing the rights…

Hansen disagreed, saying the bill doesn’t require the use of the program or say that it must be used by water court when deciding the value of rights.

John Stulp, water policy advisor for Gov. John Hickenlooper, agreed the program isn’t meant to be and end-all answer that would limit water right owners recourse in seeking adequate compensation for their resource…

The aim is to cut down on incidents of “buy and dry,” where a farmer sells his or her water rights to a municipality and loses the resource critical to cultivating the land.

Simplifying the process will make it easier for farmers to lease their water rights over a short term, rather than racking up vast sums of debt from engineering analysis and court costs arguing over the exact consumptive use of their rights.

While it is uncertain if there would be bipartisan support for the bill in the House, it is sponsored by Sen. Don Coram, R-Montrose, in the Senate.

2017 #coleg: HBl7-1306 (Test Lead In Public Schools’ Drinking Water) on its way to Appropriations

Roman lead pipe — Photo via the Science Museum

From 9News.com (Jessica Oh):

House Bill 1306 would establish a grant that would allow the Colorado Department of Public Health and Environment to test the water at all public schools in the state for up to three years.

The bill passed 12-1 and now heads to appropriations.

Under the bill, the Department of Public Health and Environment would be allowed to spent up to $300,000 per year for testing, according to officials…

Representative Jim Wilson was the only “no” vote Monday afternoon. He cited efficiency concerns and felt the testing could be more practical.

“Make no mistake.. I’m definitely in favor of testing the water,” Rep. Wilson reiterated.

HB 1306 still has a long way to go starting with appropriations.

If passed, older schools will be a priority for lead testing, officials said. Elementary schools will also be a priority since younger children face a higher risk.

The grant will not cover charter schools, which fall under a different category.

To test your own water at home, you can find more information here.

2017 #coleg: HB17-1273, an attempt to marry water #conservation and land-use decisions @COWaterPlan

Sterling Ranch

From The Grand Junction Daily Sentinel editorial board:

We’re all familiar with the anticipated water supply gap that gave rise to Gov. John Hickenlooper’s executive order calling for the formulation of a state water plan.

That plan has been completed and the Colorado Water Conservation Board has sketched out an implementation measures with cost-effective ways to make the most of every drop.

The Legislature can do its part by passing a bipartisan bill that would embed urban water conservation into land-use decisions — something the staff at the Colorado River District has advised the Sentinel’s editorial board as a key to reducing pressure to divert Western Slope water to the thirsty Front Range.

HB1273 is sponsored by Reps. Chris Hansen, D-Denver, and Hugh McKean R-Loveland, and Sens. Don Coram, R-Montrose, and Matt Jones, D-Louisville.

The bill essentially requires that all new development be built “water-smart” from the start. It closes a loophole that allows new home developments to be less water-wise than they’re capable of.

This idea fits squarely within existing attitudes among Westerners about water conservation. A recent Conservation in the West Poll conducted by Colorado College as part of its State of the Rockies Project shows 77 percent of Colorado voters surveyed favor using water supply more wisely by encouraging conservation, reducing use and recycling. In contrast only 15 percent favor diverting water from rivers in less populated areas of the state to communities where more people live.

Colorado’s population is predicted to double by 2050, which means communities throughout the state will need more water than they currently have. As Western Resource Advocates points out, building new homes water-smart from the start is one of the easiest, cheapest, and most politically viable ways to reduce water needs — yet current law does not require new developments to even list the water-wise actions that are planned to reduce use.

The bill changes current law to require new developments to describe the water-conservation and demand-management actions that will be implemented, and makes a review of those actions an explicit part of the permit approval process. It prohibits local governments from approving permit applications unless applicants demonstrate that appropriate water conservation and demand management measures have been included in the water supply plan.

Common-sense strategies available to new home developers include low-water toilets and showerheads, efficient irrigation and xeriscaping. Local governments would decide which strategies for new development work best in their communities.

The bill would help fill the state’s water-supply gap, which will stifle economic development if not properly addressed. It will keep more water in Western Slope rivers for recreation and tourism.

Throughout the West, nine in 10 voters are willing to reduce the amount of water their households use. This bill helps meet that enlightened view.

The bill has passed the House and awaits a committee assignment in the Senate. We urge senators to support it and help the state continue to make strides toward eliminating the supply gap.

Durango: “Solving the Water Funding Puzzle” conference recap

Animas River through Durango August 9, 2015, after the Gold King Mine spill. Photo credit Grace Hood

From The Cortez Journal (Jim Mimiaga):

The Southwestern Water Conservation District hosted a conference titled “Solving the Water Funding Puzzle” at the DoubleTree Hotel in Durango to confront the budget crisis.

Colorado’s overriding challenge lies in how water management is funded, said Bill Levine, budget director for the state Department of Natural Resources.

Much of the state’s revenue stream for water-supply management is tied to federal energy, including severance taxes from the oil and gas industry, which exposes Colorado to the ebb and flow of the volatile oil and gas industry.

“When energy values drop, so does the revenue stream, so it is by nature volatile,” Levine said. “Revenue that is not tied to the energy industry is needed.”

Because of a weak energy market and a costly court ruling, the state’s revenues from severance taxes dropped from $271 million in fiscal year 2015 to $67 million in fiscal year 2016.

And in 2016, the state lost a lawsuit brought by British Petroleum over severance taxes. The state is refunding energy companies – $113 million so far – after the Colorado Supreme Court ruled that the companies qualify for a deduction the Department of Revenue had been denying them.

State and local agencies have paid a price.

The drop in revenues from federal minerals caused program budgets for the Colorado Water Conservation Board to drop from $14 million in 2015 to $8 million in 2016.

The cuts wiped out funding for boat inspection programs needed to stop invasive quagga and zebra mussels, which has limited boating at McPhee Reservoir and Totten Lake in Montezuma County.

Grant programs of the Department of Local Affairs also were cut, because they too depend on severance tax revenues.

Severance tax revenues have funded the Southwest Basin Roundtable grant program that supports water projects in southwest Colorado. Funding will suffer, and there will be less grant money, said roundtable chair Mike Preston.

In La Plata County, the basin fund helped to finance an inlet from Lake Nighthorse as part of a plan to provide municipal water for Fort Lewis Mesa, which includes the communities of Breen and Kline.

It’s been tapped to support a project improving water supply at Lake Durango, which serves Durango West communities. And the grants have supported an Animas River community forum, which is establishing emergency response protocols to protect water users in the event of a toxic spill such as the 2015 Gold King Mine disaster.

Finding funding solutions
Several potential sources of revenue for water-related infrastructure and programs were presented at the packed conference.

Emily Brumit, of the Colorado Water Congress, gave an update on legislative proposals and a ballot initiative that would support water-related budgets, including the struggling boat-inspection programs.

For example, Senate Bill 259 proposes to replace lost severance tax revenues with $10 million from the general fund to support forest restoration, species conservation and boat inspection programs. House Bill 1321, introduced this week, would create a revenue stream through a sticker fee to fund boat inspection programs.

And Initiative 20 focuses on oil and gas severance taxes. Its primary goal is to increase the severance tax rate, eliminate the severance tax credit that is based on property taxes, eliminate the stripper well exemption and require that a portion of severance tax revenue be paid for specific purposes…

Legislators are considering asking voters to approve a container tax on beverages to raise $100 million to $200 million per year for water-related needs. A vote could end-run the Taxpayers Bill of Rights, exempting it from TABOR revenue caps.

Other ideas presented at the conference included a new water fee paid by residential consumers, new water tap fees and new tourism fees…

Government specialist Christine Arbogast said the idea of private-public partnerships is popular for new money. But she does not believe they are a viable local solution locally.

“The expected rate of return of 5-8 percent from private investors is too much for the tax base of smaller communities,” she said.

La Plata County Commissioner Brad Blake urged the crowd to take a long-term vision on solving the budget crisis, like previous generations did.

“We have good water rights, but don’t have a way to move it around well,” he said. “The pioneers built dams, ditches and levees. Now we are tasked with looking ahead to provide water infrastructure in our area. We need more public involvement so we get all the help we need to overcome this monumental task.”

2017 #coleg: SB17-036, on to conference committee

Groundwater movement via the USGS

From The Grand Junction Daily Sentinel (Charles Ashby):

Sens. Ray Scott and Don Coram wanted to simply accept a change to their groundwater appeals bill Wednesday, but the rest of the Senate wouldn’t let them.

The two Republicans from Grand Junction and Montrose, respectively, told the Senate that a change the House made to their measure, SB36, was a minor one.

But Sen. Jerry Sonnenberg, R-Sterling, and others in the Colorado Senate said it weakened it too much.

The bill was designed to prevent moneyed interests, such as developers, from retrying groundwater rights cases that have been determined by the Colorado Groundwater Commission.

Under current law, appeals from that commission to district courts can include evidence not presented to the commission, essentially retrying the cases.

The House altered it to allow that to happen only if the district judge determines that evidence was wrongly excluded or new evidence was discovered.

“What this (bill) now does is, it takes and allows any evidence that may not have been discovered,” Sonnenberg said. “(But) no discovery can fall under that category and can be used in an appeal, essentially creating a scenario where (water) speculators can then lawyer up, engineer up, as we were trying to address in this bill.”

On a 24-10 vote, the Senate rejected Coram’s and Scott’s request to accept the change, forcing them to send the bill to a special conference committee made up of three senators and three legislators from the House to work out that issue.

2017 #coleg: Funds for invasive species boat inspections diverted by the Colorado Supreme Court

Harvey Gap Reservoir via the Applegate Group.

From The Grand Junction Daily Sentinel (Dennis Webb):

A Colorado Supreme Court ruling last year eliminated severance tax revenues for Colorado Parks and Wildlife’s aquatic nuisance species program, forcing the end of inspections at some sites, CPW says.

As a result, CPW has agreed to close Harvey Gap Reservoir northwest of Silt to watercraft normally requiring such an inspection, due to the agency’s inability to conduct inspections there for species such as invasive zebra and quagga mussels. Hand-launched vessels exempt from the inspections still will be allowed there, including rafts, kayaks, belly boats, float and inner tubes, canoes, windsurfer boards, paddle boards and sailboards.

Hand-launched boats with electric motors will be allowed there, but gas- or diesel-powered engines will be prohibited because they are more at risk of hosting invasive species. The boat ramp will remain closed and all boats must be carried from parking lots or roads.

Meanwhile, the Cortez Journal reports that Totten and Narraguinnep reservoirs in southwest Colorado will be closed to all boating because of concerns among authorities responsible for those sites about possible infestation due to a lack of inspections.

The funding situation also helped prompt CPW this year to pass new regulations subjecting all watercraft, including those exempt from inspection requirements, to a “clean, drain and dry” requirement between each launch. The agency also requires boat operators to pull water drain plugs and remove plants from boats and other equipment upon leaving the water and before leaving the parking area…

CPW says it has coordinated a successful mandatory statewide inspection and decontamination program since 2008, preventing an infestation in the state. The agency says that’s of not just statewide but national importance, because the other primary way mussels can spread is by downstream travel.

The agency says oil and gas severance tax revenues are a primary source of money for the aquatic nuisance species program, but those revenues were eliminated by last year’s court ruling.

In that ruling, the state’s high court overturned the Colorado Court of Appeals and sided with BP America Production Co., finding that a company’s cost of capital is a proper severance tax deduction when claiming deduction costs associated with natural gas transportation and processing.

The decision affected not only BP but other energy producers that have been able to seek refunds on tax payments, reportedly resulting in an impact of tens of millions of dollars to the state. It also means they’re able to pay less in taxes going forward.

CPW’s efforts to shore up its aquatic nuisance species program may be in for some help soon. On Thursday the state Senate unanimously gave final approval to Senate Bill 259, which among other actions would provide $2.45 million to the agency’s aquatic nuisance species fund on the parks and outdoor recreation side, and another $1.2 million to the program’s fund on the wildlife side.

The measure still awaits action in the House, where state Rep. Bob Rankin, R-Carbondale, is its main sponsor.

Earlier this year, CPW also suggested to lawmakers that an aquatic nuisance species fee be assessed on boats, at an amount of $15 for nonmotorized boats, $25 for motorized boats for Colorado residents, and $50 for out-of-state motorized boats.

Meanwhile, CPW said in its release that it “has allocated internal funds and worked with a broad partnership group to raise funds for the 2017 boating season and find sustainable funding solutions.”

It says it has sought help from partners including municipal water providers, irrigation and water districts, federal and state agencies and counties that would share the risk if infestation occurred.

Those partners have provided nearly $1 million in assistance so far.

However, the existing funding shortfall means inspections may be reduced at some stations, and a few lower-risk waters that previously had inspections won’t have stations in operation this year unless the state and its partners are able to find new funding.

Harvey Gap Reservoir is owned by Farmers Irrigation Co. and the Silt Water Conservancy District operates and maintains the reservoir and associated irrigation water delivery infrastructure. CPW leases the reservoir surface and manages its fishery as well as area trails and day-use areas.

CPW restricted boat use at the reservoir at the request of the water district…

Local CPW spokesman Mike Porras said the funding situation remains fluid. He said in northeast Colorado some bodies of water were able to keep inspection stations after local water districts agreed to fund them for the short term. Porras recommends that before trying to go boating at any specific location, people call that location or check the agency’s website, http://www.cpw.state.co.us, to see what restrictions may apply.

Here’s a report about Vallecito Reservoir from Carole McWilliams writing in The Pine River Times. Here’s an excerpt:

Boating access at Vallecito and other Colorado lakes might be threatened by state budget issues.

Jim Schank from the Vallecito Sporting and Conservation Association told the Times, “There’s no money for zebra mussel inspections on lakes in the area.”

The Colorado Department of Parks and Wildlife has been in charge of inspections to prevent introduction of invasive zebra and quagga mussels into clean lakes. People bring boats that have been in infested water, such as Lake Powell, and the mussels can reproduce prolifically and clog pumps, pipes, and other structures.

The Sporting and Conservation Association took over operation of the Vallecito marina two summers ago after the previous private operator pulled out and no other private operator wanted to take it over…

Park and Wildlife “will match what we raise,” Schank said. “Right now it would be Friday to Sunday to have the boat ramp open. There are a lot of people here that rely on that.”

He urged people to contact state legislators about this.

Durango Parks and Wildlife Office spokesman Joe Lewandowski told the Times his department isn’t definite what sort of match DPW might provide…

DPW is working with irrigation, water, and recreation districts around the state to find a solution, Lewandowski said. “Vallecito isn’t the only lake affected. It’s lakes all over the state. … It’s a pretty major problem throughout the state. We’re as concerned about it as anybody else, to make sure recreation stays open.”

Pine River Irrigation District Superintendent Ken Beck told the Times that there have been a series of meetings with the Sporting and Conservation Association, DPW and other entities. “We’re trying to generate a fundraising campaign and let folks know that the money we received from CPW has dried up… It took 21 reservoirs out of funding for boat inspections.”

He continued, “Last year we had around $48,000 to fund recreation” at Vallecito. PRID budgets dam operation and maintenance functions separate from recreation. Beck noted that Vallecito is an irrigation project. In the past, PRID shareholders have made it clear they don’t want their assessments used to subsidize recreation.

The goal is to get $48,000 for this year if local fundraising can bring in $24,000, and hope DPW can match it, Beck said.

He is sending solicitation letters to individuals and entities that could be affected by a lack of boating access.

“We’ll continue to meet,” Beck said. “We’ll fund it and have the lake open. If we don’t receive anything, there will be significant impacts.”

“We have a clean reservoir now,” he said, but noted there have been boats at Vallecito that tested positive for the mussels. “We were able to decontaminate them before they went in the water. … It’s a lot easier to prevent infestation than to remediate. That could get really expensive.”