§ 37-60-115 — Water studies - rules - reports - definitions - repeal

Colorado § 37-60-115

• Jurisdiction: Colorado
• Title 37: Water and
• Art.: Colorado Water Conservation Board

Text

(1) (a) The
Colorado water conservation board is authorized to forthwith make, or cause to be
made, a continuous study of the water resources of the state of Colorado, and a
continuous study of the present and potential uses thereof to the full extent
necessary to a unified and harmonious development of all waters for beneficial use
in Colorado to the fullest extent possible under the law, including the law created
by compacts affecting the use of said water. The studies to be made shall include
analyses of the extent to which water may be transferred from one watershed to
another within the state without injury to the potential economic development of
the natural watershed from which water might be diverted for the development of
another watershed.

(b) In order to assure that the state of Colorado protects its allocation of
interstate waters for current and future beneficial purposes, to achieve optimum
development of such waters under significant constraints imposed by federal law
and policy, and to achieve efficient and effective management of river systems for
recognized beneficial purposes, the board is authorized to expend such moneys as
may be allocated, appropriated, or otherwise credited to the Colorado water
conservation board construction fund for such projects and programs as may be
specifically authorized by the general assembly, including but not limited to
development of river basin models within and without the state, policy formulation,
interstate negotiations, and water management within the state.

(2) (Deleted by amendment, L. 96, p. 1223, � 24, effective August 7, 1996.)

(3) The Colorado water conservation board is further authorized and
directed, after consultation with the agriculture, livestock, and natural resources
committee of the house of representatives and the agriculture, natural resources,
and energy committee of the senate and consistent with its duties set forth in
section 37-90-117 and the provisions of subsections (1) and (2) of this section, to
study the state's groundwater resource, particularly that water that may prove to
be nontributary, both within the Denver basin and throughout the state, including
nontributary groundwater quality.

(4) (a) The Colorado water conservation board shall compile an inventory of
potential dam and reservoir sites within the state of Colorado.

(b) The inventory shall be based upon a review of the state engineer's water
rights tabulation and a review of all publicly available published information.
Original engineering work or field investigations shall not be performed by the
board for the inventory. The inventory shall be compiled and maintained on a
computerized information retrieval system which is either a part of or otherwise
compatible with the water data bank maintained by the state engineer.

(c) The following information concerning potential dam and reservoir sites
within the state of Colorado having a capacity of twenty thousand acre-feet or
more, or concerning such other sites as the board deems important, shall be
included in the inventory:

(I) The location of a dam site, by river, county, and reference to surveyed
section corners;

(II) The name of a dam and reservoir site if one is commonly ascribed to it;

(III) Basic data about a potential dam to the extent such is readily available;

(IV) The conditional water rights decreed to a site, if any, and their dates of
adjudication and basin ranks;

(V) If available, an estimate of a reservoir's total active capacity;

(VI) The potential uses of the water supply which would be developed; and

(VII) Citations to reference materials and sources for the information
specified in this paragraph (c).

(d) Utilizing the inventory, the board shall identify potential dam and
reservoir sites, the development of which may be stopped because of ongoing land
uses which are encroaching upon needed lands or because of other circumstances.

(e) The board is authorized to pay for the expenses of periodically updating
and maintaining the inventory of potential dam and reservoir sites for which this
section calls using moneys appropriated, allocated, or otherwise credited to the
Colorado water conservation board construction fund.

(5) Repealed.

(6) Precipitation harvesting pilot projects. (a) The board shall, in
consultation with the state engineer, select the sponsors of up to ten new
residential or mixed-use developments that will conduct individual pilot projects to
collect precipitation from rooftops and impermeable surfaces for nonpotable uses.
The purposes of the pilot projects are to:

(I) Evaluate the technical ability to reasonably quantify the site-specific
amount of precipitation that, under preexisting, natural vegetation conditions,
accrues to the natural stream system via surface and groundwater return flows;

(II) Create a baseline set of data and sound, transferable methodologies for
measuring local weather and precipitation patterns that account for variations in
hydrology and precipitation event intensity, frequency, and duration, quantifying
preexisting, natural vegetation consumption, measuring precipitation return flow
amounts, identifying surface versus groundwater return flow splits, and identifying
delayed groundwater return flow timing to receiving streams;

(III) Evaluate a variety of precipitation harvesting system designs, including
integrated storm water and precipitation harvesting facilities. Notwithstanding the
definition of a storm water detention and infiltration facility in section 37-92-602
(8)(b)(I), a pilot project may include a single integrated facility serving the
temporary detention or infiltration purposes of a storm water detention and
infiltration facility and a precipitation harvesting facility if precipitation captured in
the facility for beneficial use, as defined in section 37-92-103 (4), is replaced in
accordance with the requirements of subsection (6)(c) of this section and any water
captured in the facility that is not the subject of the precipitation harvesting pilot
project is managed and released back to the stream system in accordance with the
requirements of section 37-92-602 (8).

(IV) Measure precipitation capture efficiencies;

(V) Quantify the amount of precipitation that must be augmented to prevent
injury to decreed water rights;

(VI) Compile and analyze the data collected; and

(VII) Provide data to allow sponsors to adjudicate permanent augmentation
plans as specified in paragraph (c) of this subsection (6).

(b) An applicant for a development permit, as that term is defined in section
29-20-103, C.R.S., for a new planned unit development or new subdivision of
residential housing or mixed uses may submit an application to the board to
become a sponsor of one or more of the ten pilot projects authorized by this section.
The board shall establish criteria and guidelines, and update the criteria and
guidelines by January 1, 2016, with the goal of incentivizing the submission of
applications and applying lessons learned from previously approved pilot projects,
for applications and the selection of pilot projects, including the following:

(I) An application fee and, for pilot projects that are selected, an annual
review fee;

(II) The information to be included in the application, including a description
of the proposed development and the proposed precipitation harvesting system;

(III) Selection of pilot projects to represent a range of project sizes and
geographic and hydrologic areas in the state, with no more than three pilot projects
being located within any single water division established in section 37-92-201;

(IV) The requirement that the proposed development meet any applicable
local government water supply requirement through sources other than
precipitation harvesting;

(V) Giving priority to pilot projects that:

(A) Are located in areas that face renewable water supply challenges; and

(B) Promote water conservation;

(VI) Regionally applicable factors that sponsors can use for substitute water
supply plans that specify the amount of precipitation consumed through
evapotranspiration of preexisting natural vegetative cover. If an applicant uses the
factors, the state engineer shall give the factors presumptive effect, subject to
rebuttal. The board need not establish factors for a region until the sponsor of a
project located within that region has submitted a minimum of two years of data
pursuant to sub-subparagraph (B) of subparagraph (II) of paragraph (c) of this
subsection (6). A sponsor that makes such a submission shall also submit the data
to the board.

(c) Notwithstanding any limitations regarding phreatophytes or impermeable
surfaces that would otherwise apply pursuant to section 37-92-103 (9) or 37-92-501 (4)(b)(III), each of the ten pilot projects shall:

(I) During the term of the pilot project, operate according to a substitute
water supply plan, if approved annually by the state engineer pursuant to section
37-92-308 (4) or (5). The pilot project shall be required to replace an amount of
water equal to the amount of precipitation captured out of priority from rooftops
and impermeable surfaces for nonpotable uses; except that, in determining the
quantity of water required for the substitute water supply plan to replace out-of-priority stream depletions, there is no requirement to replace the amount of historic
natural depletion to the waters of the state, if any, caused by the preexisting
natural vegetative cover evapotranspiration for the surface areas made
impermeable and associated with the pilot project. The applicant bears the burden
of proving the historic natural depletion; except that the applicant may use
applicable regional factors established pursuant to subparagraph (VI) of paragraph
(b) of this subsection (6).

(II) (A) Apply to the appropriate water court for a permanent augmentation
plan prior to completion of the pilot project or file a plan with the state engineer to
permanently retire the rainwater collection system, which plan shall be reviewed
and approved prior to the cessation of augmentation. As a condition of approving
the retirement of a pilot project, the state engineer shall have the authority to
require the project sponsor to replace any ongoing delayed depletions caused by
the pilot project after the project has ceased. Any such permanent augmentation
plan shall entitle the sponsor to consume without replacement only that portion of
the precipitation that the sponsor proves by a preponderance of the evidence would
not have accrued to a natural stream under preexisting, natural vegetation
conditions. The sponsor shall be required to fully augment any precipitation
captured out of priority that would otherwise have accrued to a natural stream.

(B) After a minimum of two years of data collection and upon application to
the appropriate water court for a permanent augmentation plan, the pilot project
sponsor shall file an application for approval of a substitute water supply plan
pursuant to section 37-92-308 (4). For any substitute supply plan application filed
under section 37-92-308 (4), the sponsor shall fully augment any precipitation
captured out of priority; except that, in determining the quantity of water required
for the substitute water supply plan to replace out-of-priority stream depletions,
there is no requirement to replace the amount of historic natural depletion to the
waters of the state, if any, caused by preexisting natural vegetative cover
evapotranspiration for the surface areas made impermeable and associated with
the pilot project. The applicant may use applicable regional factors established
pursuant to subparagraph (VI) of paragraph (b) of this subsection (6).

(d) Each sponsor shall submit an annual preliminary report to the board and
the state engineer summarizing the information set forth in subsection (6)(a) of this
section. The board and the state engineer shall brief the water resources and
agriculture review committee created in section 37-98-102 on the reported results
of the pilot projects by July 1, 2014. Each sponsor shall submit a final report to the
board and the state engineer by January 15, 2025. The board and the state engineer
shall provide a final briefing to the water resources and agriculture review
committee by July 1, 2025.

(e) (I) This subsection (6) is repealed, effective July 1, 2026.

(II) This repeal does not affect or otherwise preclude water courts from
adjudicating any application for an augmentation plan pursuant to this subsection
(6) that is filed prior to July 1, 2026.

(7) Repealed.

(8) Fallowing and leasing pilot projects. (a) After a period of notice and
comment, the board may, in consultation with the state engineer and upon
consideration of any comments submitted, select the sponsors of up to fifteen pilot
projects pursuant to the approval process set forth in subsection (8)(f) of this
section. The board shall not itself sponsor a pilot project, but the board may provide
financial, technical, or other assistance to a pilot project pursuant to the board's
other activities and programs. No more than five pilot projects may be located in
any one of the major river basins, namely: The South Platte river basin; the Arkansas
river basin; the Rio Grande river basin; and the Colorado river basin. Each project
may last up to ten years in duration and must demonstrate the practice of:

(I) Fallowing agricultural irrigation land; and

(II) Leasing the associated water rights for temporary municipal, agricultural,
environmental, industrial, or recreational use.

(b) The purpose of the pilot program is to:

(I) In fallowing irrigated agricultural land for leasing water for temporary
municipal, agricultural, environmental, industrial, or recreational use, demonstrate
cooperation among different types of water users, including cooperation among
shareholders, ditch companies, water user associations, irrigation districts, water
conservancy districts, water conservation districts, and municipalities;

(II) Evaluate the feasibility of delivering leased water to the temporary
municipal, agricultural, environmental, industrial, or recreational users;

(III) Provide sufficient data from which the board, in consultation with the
state engineer, can evaluate the efficacy of using a streamlined approach, such as
an accounting and administrative tool, for determining:

(A) Historical consumptive use;

(B) Return flows;

(C) The potential for material injury to other water rights; and

(D) Conditions to prevent material injury; and

(IV) Demonstrate how to operate, administer, and account for the practice of
fallowing irrigated agricultural land for leasing water for temporary municipal,
agricultural, environmental, industrial, or recreational use without causing material
injury to other vested water rights, decreed conditional water rights, or contract
rights to water.

(c) The board shall not select a pilot project that involves:

(I) The fallowing of the same land for more than three years in a ten-year
period;

(II) The fallowing of more than thirty percent of a single irrigated farm for
more than ten consecutive years;

(III) The transfer or facilitation of the transfer of water across the continental
divide by direct diversion, exchange, or otherwise; or

(IV) The transfer or facilitation of the transfer of water out of the Rio Grande
basin by direct diversion, exchange, or otherwise.

(d) After providing a reasonable opportunity for public comment and
consideration of any comments received, the board, in consultation with the state
engineer, shall establish criteria and guidelines including at least the following:

(I) An application fee and, for selected pilot projects, an annual review fee;

(II) The information to be included in the application, including a description
of the proposed pilot project;

(III) The maximum quantity of transferable consumptive water use per year
for any single pilot project;

(IV) Notwithstanding paragraph (a) of this subsection (8), any geographic
areas that are not eligible for pilot projects;

(V) A time period of sixty days within which the board receives comments on
the application after providing notice pursuant to the process set forth in
paragraphs (e) and (f) of this subsection (8). The comments may include:

(A) Any claim of injury;

(B) Any terms and conditions that the person filing a comment believes
should be imposed on the pilot project in order to prevent injury to other water
rights, decreed conditional water rights, or contract rights to water; and

(C) Other information that the person filing the comment believes the board
should consider in reviewing the application.

(VI) Criteria for a conference between a pilot project applicant, the state
engineer, and owners of water rights or a contract rights to water that file
comments on the application, including the following requirements:

(A) The conference participants must meet within thirty days after final
comments on the application have been submitted;

(B) At the conference, the conference participants must discuss how the
pilot project could be structured to prevent material injury to other water rights and
contract rights to water; and

(C) Within fifteen days after the conference, the pilot project applicant and
the owners of water rights or contract rights to water must file a joint report with
the board and with the state engineer outlining any agreed-upon terms and
conditions for the proposed pilot project and explaining the reasons for failing to
agree on any terms and conditions for the proposed pilot project if the applicant
and the owners fail to reach a full agreement at the conference;

(VII) Guidelines for the operation and administration of the pilot projects to
assure that a pilot project:

(A) Will effect only a temporary change in the historical consumptive use of
the water right in a manner that will not cause injury to other water rights, decreed
conditional water rights, or contract rights to water; and

(B) Will not impair compliance with any interstate compact;

(VIII) Criteria for selecting pilot projects that range in size and complexity;

(IX) Criteria for selecting pilot projects over a period ending on December 31,
2023, to provide a window for potential pilot project sponsors to apply;

(X) A requirement that a proposed pilot project:

(A) Meet applicable local government land use requirements;

(B) Prevent erosion and blowing soils; and

(C) Comply with local county noxious weed regulations;

(XI) A requirement that, during the term of the pilot project, land and water
included in a pilot project is not also included in a substitute water supply plan
pursuant to section 37-92-308 (5) or (7), an interruptible water supply agreement
pursuant to section 37-92-309, or another pilot project;

(XII) A requirement for periodic reports to the board on the operation of the
pilot project; and

(XIII) A requirement that priority is given to pilot projects that can be
implemented using existing infrastructure.

(e) (I) For approval of a pilot project, the applicant must provide written
notice of the application, including, at a minimum:

(A) A description of the proposed pilot project;

(B) An analysis of the historical use, the historical consumptive use, and the
historical return flows of the water rights or contract rights to water proposed to be
used for temporary municipal, agricultural, environmental, industrial, or
recreational use; and

(C) A description of the source of water to be used to replace historical
return flows during the pilot project and after completion of the pilot project; and

(II) The applicant must provide the written notice by first-class mail or
electronic mail to all parties that have subscribed to the substitute water supply
plan notification list, as described in section 37-92-308 (6) for the division or
divisions in which the water right is located and in which it will be used. The
applicant must file proof of the written notice with the board.

(f) After consideration of the comments and any conference reports
submitted pursuant to subparagraph (VI) of paragraph (d) of this subsection (8), the
board may approve the pilot project application if:

(I) Within fifteen days after receiving a conference report submitted under
subparagraph (VI) of paragraph (d) of this subsection (8) or, if the board does not
receive any comments on the application, within thirty days after the period of time
for comments has expired, the state engineer has made a written determination
that the operation and administration of the pilot project:

(A) Will effect only a temporary change in the historical consumptive use of
the water right in a manner that will not cause injury to other water rights, decreed
conditional water rights, or contract rights to water; and

(B) Will not impair compliance with any interstate compact; and

(II) The board adopts all terms and conditions recommended by the state
engineer.

(g) When the board approves or denies a pilot project application, it shall
serve a copy of the decision, along with a copy of the state engineer's written
determination and any conference reports submitted under subparagraph (VI) of
paragraph (d) of this subsection (8), upon all parties to the application by first-class
mail or, if elected by the parties, by electronic mail. The board shall mail a copy of
the decision, the state engineer's written determination, and any conference
reports to the appropriate water clerk.

(h) (I) Neither the board's approval nor the denial of a pilot project creates
any presumptions, shifts the burden of proof, or serves as a defense in any legal
action that may arise concerning the pilot project. The board's approval or denial of
a pilot project application and the state engineer's written determination on the
application are final agency actions that may be appealed. An appeal pursuant to
this subsection (8) must be filed with the appropriate water judge and be made
within thirty-five days after the board's decision has been mailed to the appropriate
water clerk.

(II) The water judge shall expedite the appeal, which shall be de novo, and
use the procedures and standards set forth in sections 37-92-304 and 37-92-305
for determination of matters rereferred to the water judge by the referee; except
that the water judge shall not deem a party's failure either to appeal all or any part
of the board's decision or the state engineer's written determination or to state any
grounds for the appeal to preclude the party from raising a claim of injury in a
future proceeding before the water judge. The pilot project applicant is deemed to
be the applicant for purposes of the procedures and standards that the water judge
applies to the appeal.

(i) The board, in consultation with the state engineer, shall annually report to
the water resources and agriculture review committee, created in section 37-98-102, or its successor committee, on the reported results of the pilot projects. The
board, in consultation with the state engineer, shall provide a final report to the
water resources and agriculture review committee, or its successor committee, by
July 1, 2034, or the year in which the final pilot project is completed, if before 2034.

(j) This subsection (8) is repealed, effective September 1, 2035.

(9) to (11) Repealed.

(12) (a) Study. (I) The board, in consultation with the state engineer, the
Colorado energy office, and the institute, shall conduct a study to determine the
feasibility of the use of floatovoltaics as a means of increasing the beneficial
consumptive use of state waters by reducing evaporation from, and lowering
temperatures of, irrigation canals and reservoirs upon which floatovoltaic
infrastructure is placed. In studying the feasibility of using floatovoltaics, the board
shall ensure that any floatovoltaic infrastructure used in the study does not
interfere with instream flows, as described in section 37-92-102 (3), or with water
rights owners' ability to divert water for beneficial use.

(II) The board may contract with the institute, a third party, or both to design,
carry out, and analyze the results of the study required in this subsection (12)(a). If
the board deems appropriate, the study must be conducted in consideration of and
reliance on relevant studies completed in the state and nationally.

(b) Report. On or before January 1, 2025, the board shall submit a report of
the findings and conclusions of the study to the house of representatives
agriculture, water, and natural resources committee and the senate agriculture and
natural resources committee, or their successor committees.

(c) As used in this subsection (12), unless the context otherwise requires:

(I) Beneficial use has the meaning set forth in section 37-92-103 (4).

(II) Divert has the meaning set forth in section 37-92-103 (7).

(III) Floatovoltaics means one or more solar energy generation facilities
placed over or near or floating on irrigation canals or reservoirs in the state.

(IV) Institute means the Colorado water institute created in section 23-31-801.

(V) Water right has the meaning set forth in section 37-92-103 (12).

(VI) Waters of the state has the meaning set forth in section 37-92-103
(13).

Legislative History

Source: L. 53: p. 645, � 1. CRS 53: � 148-1-14. C.R.S. 1963: � 149-1-14. L. 67: p. 294, � 6. L. 85: Entire section amended, p. 1191, � 3, effective June 13; (3) added, p. 1168, � 9, effective July 1. L. 86: (4) added, p. 1079, � 1, effective July 1. L. 88: (4)(e) amended, p. 1236, � 6, effective May 23. L. 92: (1) amended, p. 2282, � 2, effective May 27. L. 96: (2), (4)(a), (4)(d), and (4)(e) amended, p. 1223, � 24, effective August 7. L. 2006: (5) added, p. 1236, � 1, effective May 26. L. 2009: (6) added, (HB 09-1129), ch. 389, p. 2102, � 1, effective June 2. L. 2012: (7) added, (HB 12-1278), ch. 239, p. 1062, � 2, effective May 30. L. 2013: (8) added, (HB 13-1248), ch. 210, p. 879, � 2, effective May 13. L. 2014: (9) added, (SB 14-195), ch. 355, p. 1653, � 1, effective June 6. L. 2015: IP(6)(b), (6)(c)(I), (6)(c)(II)(B), (6)(d), and (6)(e) amended and (6)(b)(VI) added, (HB 15-1016), ch. 236, p. 874, � 1, effective August 5; (8)(a)(II), (8)(b)(I), (8)(b)(II), (8)(b)(IV), IP(8)(d)(V), (8)(e)(I)(B), IP(8)(f), (IP)(8)(f)(I), and (8)(g) amended, (SB 15-198), ch. 145, p. 439, � 1, effective August 5; (10) added, (HB 15-1013), ch. 235, p. 870, � 1, effective August 5. L. 2016: (10)(g) amended, (SB 16-189), ch. 210, p. 791, � 99, effective June 6; (11) added, (HB 16-1256), ch. 268, p. 1108, � 1, effective June 9. L. 2017: IP(8)(a), (8)(d)(IX), (8)(i), and (8)(j) amended, (HB 17-1219), ch. 188, p. 685, � 1, effective August 9. L. 2018: (7) repealed, (HB 18-1375), ch. 274, p. 1719, � 77, effective May 29. L. 2020: (10)(f) and (10)(g) amended, (SB 20-214), ch. 200, p. 984, � 12, effective June 30. L. 2022: (6)(d), (8)(i), and (10)(f) amended, (SB 22-030), ch. 59, p. 270, � 6, effective August 10. L. 2023: (6)(e) amended, (SB 23-178), ch. 207, p. 1075, � 3, effective August 7; (12) added, (SB 23-092), ch. 218, p. 1130, � 4, effective August 7. L. 2024: IP(6)(a) and (6)(a)(III) amended, (SB 24-148), ch. 58, p. 199, � 1, effective August 7.