2016 Colorado Revised Statutes
Title 37 - Water and Irrigation
Water Conservation Board and Compacts
Article 60 - Colorado Water Conservation Board
Part 1 - General Provisions
§ 37-60-126. Water conservation and drought mitigation planning - programs - relationship to state assistance for water facilities - guidelines - water efficiency grant program - definitions - repeal

(1) As used in this section and section 37-60-126.5, unless the context otherwise requires:

(a) "Agency" means a public or private entity whose primary purpose includes the promotion of water resource conservation.

(b) "Covered entity" means each municipality, agency, utility, including any privately owned utility, or other publicly owned entity with a legal obligation to supply, distribute, or otherwise provide water at retail to domestic, commercial, industrial, or public facility customers, and that has a total demand for such customers of two thousand acre-feet or more.

(c) "Grant program" means the water efficiency grant program established pursuant to subsection (12) of this section.

(d) "Office" means the office of water conservation and drought planning created in section 37-60-124.

(e) "Plan elements" means those components of water conservation plans that address water-saving measures and programs, implementation review, water-saving goals, and the actions a covered entity shall take to develop, implement, monitor, review, and revise its water conservation plan.

(f) "Public facility" means any facility operated by an instrument of government for the benefit of the public, including, but not limited to, a government building; park or other recreational facility; school, college, university, or other educational institution; highway; hospital; or stadium.

(g) "Water conservation" means water use efficiency, wise water use, water transmission and distribution system efficiency, and supply substitution. The objective of water conservation is a long-term increase in the productive use of water supply in order to satisfy water supply needs without compromising desired water services.

(h) "Water conservation plan", "water use efficiency plan", or "plan" means a plan adopted in accordance with this section.

(i) "Water-saving measures and programs" includes a device, a practice, hardware, or equipment that reduces water demands and a program that uses a combination of measures and incentives that allow for an increase in the productive use of a local water supply.

(2) (a) Each covered entity shall, subject to section 37-60-127, develop, adopt, make publicly available, and implement a plan pursuant to which such covered entity shall encourage its domestic, commercial, industrial, and public facility customers to use water more efficiently. Any state or local governmental entity that is not a covered entity may develop, adopt, make publicly available, and implement such a plan.

(b) The office shall review previously submitted conservation plans to evaluate their consistency with the provisions of this section and the guidelines established pursuant to paragraph (a) of subsection (7) of this section.

(c) On and after July 1, 2006, a covered entity that seeks financial assistance from either the board or the Colorado water resources and power development authority shall submit to the board a new or revised plan to meet water conservation goals adopted by the covered entity, in accordance with this section, for the board's approval prior to the release of new loan proceeds.

(3) The manner in which the covered entity develops, adopts, makes publicly available, and implements a plan established pursuant to subsection (2) of this section shall be determined by the covered entity in accordance with this section. The plan shall be accompanied by a schedule for its implementation. The plans and schedules shall be provided to the office within ninety days after their adoption. For those entities seeking financial assistance, the office shall then notify the covered entity and the appropriate financing authority that the plan has been reviewed and whether the plan has been approved in accordance with this section.

(4) A plan developed by a covered entity pursuant to subsection (2) of this section must, at a minimum, include a full evaluation of the following plan elements:

(a) The water-saving measures and programs to be used by the covered entity for water conservation. In developing these measures and programs, each covered entity shall, at a minimum, consider the following:

(I) Water-efficient fixtures and appliances, including toilets, urinals, clothes washers, showerheads, and faucet aerators;

(II) Low water use landscapes, drought-resistant vegetation, removal of phreatophytes, and efficient irrigation;

(III) Water-efficient industrial and commercial water-using processes;

(IV) Water reuse systems;

(V) Distribution system leak identification and repair;

(VI) Dissemination of information regarding water use efficiency measures, including by public education, customer water use audits, and water-saving demonstrations;

(VII) (A) Water rate structures and billing systems designed to encourage water use efficiency in a fiscally responsible manner.

(B) The department of local affairs may provide technical assistance to covered entities that are local governments to implement water billing systems that show customer water usage and that implement tiered billing systems.

(VIII) Regulatory measures designed to encourage water conservation;

(IX) Incentives to implement water conservation techniques, including rebates to customers to encourage the installation of water conservation measures;

(b) A section stating the covered entity's best judgment of the role of water conservation plans in the covered entity's water supply planning;

(c) The steps the covered entity used to develop, and will use to implement, monitor, review, and revise, its water conservation plan;

(d) The time period, not to exceed seven years, after which the covered entity will review and update its adopted plan;

(e) Either as a percentage or in acre-foot increments, an estimate of the amount of water that has been saved through a previously implemented conservation plan and an estimate of the amount of water that will be saved through conservation when the plan is implemented; and

(f) (I) Best management practices for water demand management, water efficiency, and water conservation that may be implemented through land use planning efforts.

(II) In order to assist covered entities in meeting the requirements of subparagraph (I) of this paragraph (f), the board, in consultation with the division of local government in the department of local affairs, shall:

(A) Develop training programs, including introductory programs, refresher programs, and advanced programs, for local government water use, water demand, water consumption, and land use planners regarding best management practices for water demand management, water efficiency, and water conservation;

(B) Provide the training, on a recurring basis, free of charge to local water use, water demand, and land use planners; and

(C) Make recommendations regarding how to better integrate water demand management and conservation planning into land use planning, including, as appropriate, legislative, regulatory, and guidance or policy recommendations.

(4.5) (a) On an annual basis starting no later than June 30, 2014, covered entities shall report water use and conservation data, to be used for statewide water supply planning, following board guidelines pursuant to paragraph (b) of this subsection (4.5), to the board by the end of the second quarter of each year for the previous calendar year.

(b) No later than February 1, 2012, the board shall adopt guidelines regarding the reporting of water use and conservation data by covered entities and shall provide a report to the senate agriculture and natural resources committee and the house of representatives agriculture, livestock, and natural resources committee, or their successor committees, regarding the guidelines. These guidelines shall:

(I) Be adopted pursuant to the board's public participation process and shall include outreach to stakeholders from water providers with geographic and demographic diversity, nongovernmental organizations, and water conservation professionals; and

(II) Include clear descriptions of: Categories of customers, uses, and measurements; how guidelines will be implemented; and how data will be reported to the board.

(c) (I) No later than February 1, 2019, the board shall report to the senate agriculture and natural resources committee and the house of representatives agriculture, livestock, and natural resources committee, or their successor committees, on the guidelines and data collected by the board under the guidelines.

(II) This paragraph (c) is repealed, effective July 1, 2020.

(5) Each covered entity and other state or local governmental entity that adopts a plan shall follow the entity's rules, codes, or ordinances to make the draft plan available for public review and comment. If there are no rules, codes, or ordinances governing the entity's public planning process, then each entity shall publish a draft plan, give public notice of the plan, make such plan publicly available, and solicit comments from the public for a period of not less than sixty days after the date on which the draft plan is made publicly available. Reference shall be made in the public notice to the elements of a plan that have already been implemented.

(6) The board is hereby authorized to recommend the appropriation and expenditure of revenues as are necessary from the unobligated balance of the five percent share of the severance tax operational fund designated for use by the board for the purpose of the office providing assistance to covered entities to develop water conservation plans that meet the provisions of this section.

(7) (a) The board shall adopt guidelines for the office to review water conservation plans submitted by covered entities and other state or local governmental entities. The guidelines shall define the method for submitting plans to the office, the methods for office review and approval of the plans, and the interest rate surcharge provided for in paragraph (a) of subsection (9) of this section.

(b) If no other applicable guidelines exist as of June 1, 2007, the board shall adopt guidelines by July 31, 2007, for the office to use in reviewing applications submitted by covered entities, other state or local governmental entities, and agencies for grants from the grant program and from the grant program established in section 37-60-126.5 (3). The guidelines shall establish deadlines and procedures for covered entities, other state or local governmental entities, and agencies to follow in applying for grants and the criteria to be used by the office and the board in prioritizing and awarding grants.

(8) A covered entity may at any time adopt changes to an approved plan in accordance with this section after notifying and receiving concurrence from the office. If the proposed changes are major, the covered entity shall give public notice of the changes, make the changes available in draft form, and provide the public an opportunity to comment on such changes before adopting them in accordance with subsection (5) of this section.

(9) (a) Neither the board nor the Colorado water resources and power development authority shall release grant or loan proceeds to a covered entity unless the covered entity provides a copy of the water conservation plan adopted pursuant to this section; except that the board or the authority may release the grant or loan proceeds notwithstanding a covered entity's failure to comply with the reporting requirements of subsection (4.5) of this section or if the board or the authority, as applicable, determines that an unforseen emergency exists in relation to the covered entity's loan application, in which case the board or the authority, as applicable, may impose a grant or loan surcharge upon the covered entity that may be rebated or reduced if the covered entity submits and adopts a plan in compliance with this section in a timely manner as determined by the board or the authority, as applicable.

(b) The board and the Colorado water resources and power development authority, to which any covered entity has applied for financial assistance for the construction of a water diversion, storage, conveyance, water treatment, or wastewater treatment facility, shall consider any water conservation plan filed pursuant to this section in determining whether to render financial assistance to such entity. Such consideration shall be carried out within the discretion accorded the board and the Colorado water resources and power development authority pursuant to which such board and authority render such financial assistance to such covered entity.

(c) The board and the Colorado water resources and power development authority may enter into a memorandum of understanding with each other for the purposes of avoiding delay in the processing of applications for financial assistance covered by this section and avoiding duplication in the consideration required by this subsection (9).

(10) Repealed.

(11) (a) Any section of a restrictive covenant or of the declaration, bylaws, or rules and regulations of a common interest community, all as defined in section 38-33.3-103, C.R.S., that prohibits or limits xeriscape, prohibits or limits the installation or use of drought-tolerant vegetative landscapes, or requires cultivated vegetation to consist wholly or partially of turf grass is hereby declared contrary to public policy and, on that basis, is unenforceable. This paragraph (a) does not prohibit common interest communities from adopting and enforcing design or aesthetic guidelines or rules that require drought-tolerant vegetative landscapes or regulate the type, number, and placement of drought-tolerant plantings and hardscapes that may be installed on the unit owner's property or property for which the unit owner is responsible.

(b) As used in this subsection (11):

(I) "Executive board policy or practice" includes any additional procedural step or burden, financial or otherwise, placed on a unit owner who seeks approval for a landscaping change by the executive board of a unit owners' association, as defined in section 38-33.3-103, C.R.S., and not included in the existing declaration or bylaws of the association. An "executive board policy or practice" includes, without limitation, the requirement of:

(A) An architect's stamp;

(B) Preapproval by an architect or landscape architect retained by the executive board;

(C) An analysis of water usage under the proposed new landscape plan or a history of water usage under the unit owner's existing landscape plan; and

(D) The adoption of a landscaping change fee.

(II) "Restrictive covenant" means any covenant, restriction, bylaw, executive board policy or practice, or condition applicable to real property for the purpose of controlling land use, but does not include any covenant, restriction, or condition imposed on such real property by any governmental entity.

(II.5) "Turf" means a covering of mowed vegetation, usually turf grass, growing intimately with an upper soil stratum of intermingled roots and stems.

(III) "Turf grass" means continuous plant coverage consisting of nonnative grasses or grasses that have not been hybridized for arid conditions which, when regularly mowed, form a dense growth of leaf blades and roots.

(IV) "Xeriscape" means the application of the principles of landscape planning and design, soil analysis and improvement, appropriate plant selection, limitation of turf area, use of mulches, irrigation efficiency, and appropriate maintenance that results in water use efficiency and water-saving practices.

(c) Nothing in this subsection (11) precludes the executive board of a common interest community from taking enforcement action against a unit owner who allows his or her existing landscaping to die or go dormant; except that:

(I) No enforcement action shall require that a unit owner water in violation of water use restrictions declared by the jurisdiction in which the common interest community is located, in which case the unit owner shall water his or her landscaping appropriately but not in excess of any watering restrictions imposed by the water provider for the common interest community;

(II) Enforcement shall be consistent within the community and not arbitrary or capricious; and

(III) In any enforcement action in which the existing turf grass is dead or dormant due to insufficient watering, the unit owner shall be allowed a reasonable and practical opportunity, as defined by the association's executive board, with consideration of applicable local growing seasons or practical limitations, to reseed and revive turf grass before being required to replace it with new sod.

(d) This subsection (11) does not supersede any subdivision regulation of a county, city and county, or other municipality.

(12) (a) (I) There is hereby created the water efficiency grant program for purposes of providing state funding to aid in the planning and implementation of water conservation plans developed in accordance with the requirements of this section and to promote the benefits of water efficiency. The board is authorized to distribute grants to covered entities, other state or local governmental entities, and agencies in accordance with its guidelines from the moneys transferred to and appropriated from the water efficiency grant program cash fund, which is hereby created in the state treasury.

(II) Moneys in the water efficiency grant program cash fund are hereby continuously appropriated to the board for the purposes of this subsection (12) and shall be available for use until the programs and projects financed using the grants have been completed.

(III) For each fiscal year beginning on or after July 1, 2010, the general assembly shall appropriate from the fund to the board up to five hundred thousand dollars annually for the purpose of providing grants to covered entities, other state and local governmental entities, and agencies in accordance with this subsection (12). Commencing July 1, 2008, the general assembly shall also appropriate from the fund to the board fifty thousand dollars each fiscal year to cover the costs associated with the administration of the grant program and the requirements of section 37-60-124. Moneys appropriated pursuant to this subparagraph (III) shall remain available until expended or until June 30, 2020, whichever occurs first.

(IV) Any moneys remaining in the fund on June 30, 2020, shall be transferred to the severance tax operational fund described in section 39-29-109 (2) (b), C.R.S.

(b) Any covered entity or state or local governmental entity that has adopted a water conservation plan and that supplies, distributes, or otherwise provides water at retail to customers may apply for a grant to aid in the implementation of the water efficiency goals of the plan. Any agency may apply for a grant to fund outreach or education programs aimed at demonstrating the benefits of water efficiency. The office shall review the applications and make recommendations to the board regarding the awarding and distribution of grants to applicants who satisfy the criteria outlined in this subsection (12) and the guidelines developed pursuant to subsection (7) of this section.

(c) This subsection (12) is repealed, effective July 1, 2020.