Legislative Update - Spring 2017
Statewide Historical Consumptive Use Bill
HB 17-1289, State Engineer Rules Historical Consumptive Use Bill, was introduced in the House last month. The bill calls for the State Engineer’s Office to develop rules to allow an applicant to calculate historical consumptive use of a water right for a temporary loan or change approved by the State Engineer or permanent change approved by a water judge. This is intended to be an alternative to reduce transaction costs and time to approve a change of a water right.
The State Engineer’s Office would create a committee of stakeholders to determine the factors in a computer model to calculate the historical consumptive use of a water right. A similar bill, HB13-1248, was passed in 2013 to determine rules on the Catlin Canal in the Lower Arkansas River Valley.
The 2013 bill specified the creation of the Lease-Fallowing Tool (LFT) to be used on the Catlin Canal for their lease-fallowing pilot project. The LFT calculates monthly volumetric consumptive limits (or the amount of consumptive use water that can be delivered) based on the average monthly CU in the three years with the highest annual use for the period of record. This tool has been used on the Catlin Canal to calculate historical consumptive use without going to water court.
When predicting the amount of consumptive use water, the LFT is conservative. It calculates less consumptive use water than other models, and less than what the crop actually consumes. This is intentional and done to alleviate fears of injury to downstream users. Less water is being counted than is actually consumed by the crop, but avoiding water court is seen as an overriding benefit. In 2016, the potential consumptive use delivery from the Catlin Canal use the LFT was 11% less than another consumptive use model used by the States of Colorado and Kansas.
The LFT relies on multiple factors to determine historical consumptive use: State Engineer diversion records, irrigated acreage, farm efficiency, county crop mix, crop ET, climate data from station nearest head gate, effective precipitation, soil moisture, deep percolation, and surface runoff.
If HB 17-1289 is signed into law, it would likely lead to the creation of lease-fallowing tool for the rest of the state that would take into account the specific conditions of each river basin.
Appellate Process Concerning Groundwater Decisions – Governor Signed (4/18/2017)
Groundwater rights disputes are handled under the Colorado Groundwater Commission. In the past, appeals to district court can include new evidence not seen by the Groundwater Commission or the State Engineer. This is unlike appeals from other state agencies’ decisions, and often leads to a lengthy and expensive appeals process.
SB36 gives district judges more discretion to decide what new evidence can be heard in those appeals. The bill limits the evidence that a court may consider to what was presented to the State Engineer and the Groundwater Commission. The only exception is if evidence was wrongly excluded or could not “in good faith” be presented to the court.
Update to 1921 Irrigation District Law – Governor Signed (3/8/2017)
The bill amends the 1921 irrigation district law to mainly updated antiquated provisions, clarify the definition of landowners, update dollar figures, adjust for inflation, define ‘agricultural land,’ update election procedures, clarify the collection of district assessments and modernize the procedure for selling surplus property. Also, water acquired in excess of an irrigation districts needs can be leased for all beneficial purposes, not just for domestic agricultural, power, and mechanical uses.
Artificial Recharge Nontributary Aquifer Rules
HB17-1076 calls for rulemaking for artificial recharge and storage of nontributary aquifers. Groundwater that is considered isolated from surface water for administrative purposes is considered nontributary if the connection to surface streams are insignificant. Right now, the Denver Basin is the only aquifer with specific rules concerning the recharge and extraction of non-native waters. Several municipalities along the Denver Basin have utilized the underlying aquifer to store water (typically through wells) to be extracted at a later date. HB17-1076 would create specific rules to regulate similar aquifer storage and recovery (ASR) projects on nontributary aquifers.
The Real Estate Development Demonstrate Water Conservation – HB 17-1273
HB 17-1273 essentially requires new housing development be built “water-smart.” Currently, new developments must include reasonably conservative measures and water demand management to account for hydrologic variability. This bill adds that measures and management must also “reduce water needs” and that an applicant must demonstrate that water conservation and demand management measures have been included in the water supply plan.