2016 Colorado Revised Statutes
Title 37 - Water and Irrigation
Water Rights and Irrigation
Article 92 - Water Right Determination and Administration
Part 3 - Determination and Administration of Water Rights
§ 37-92-309. Interruptible water supply agreements - special review procedures - rules - water adjudication cash fund - legislative declaration - definitions

(1) The general assembly hereby finds, determines, and declares that there are certain circumstances under which administrative approval of the use of interruptible water supply agreements can maximize the beneficial use of Colorado water resources without the need for an adjudication and without injury to vested water rights or decreed conditional water rights. This section is intended to enable water users to transfer the historical consumptive use of an absolute water right for application to another type or place of use on a temporary basis without permanently changing the water right.

(2) For purposes of this section:

(a) "Interruptible water supply agreement" means an option agreement between two or more water right owners whereby:

(I) The owner of the loaned water right agrees that, during the term of the agreement, it will stop its use of the loaned water right for a specified length of time if the option is exercised by the borrowing water right owner in accordance with the agreement; and

(II) The borrowing water right owner may divert the loaned water right for such owner's purposes, subject to the priority system and subject to temporary approval by the state engineer in accordance with this section.

(b) "Loaned water right" means any identified water right, or identified portion of a water right, specifically described in the interruptible water supply agreement.

(3) The state engineer is authorized to approve and administer interruptible water supply agreements that permit a temporary change in the point of diversion, location of use, and type of use of an absolute water right without the need for an adjudication pursuant to this article, subject to the following:

(a) The applicant for approval of an interruptible water supply agreement shall provide written notice of the application by first-class mail or electronic mail to all parties who 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, and proof of such notice shall be filed with the state engineer. The application shall be accompanied by a detailed written report, prepared by a professional engineer or other professional acceptable to the state engineer, that evaluates the historical consumptive use, return flows, and the potential for material injury to other water rights relating to the interruptible water supply agreement and that proposes conditions to prevent such injury. The state engineer shall give the owners of water rights thirty-five days after the date of mailing of such notice to file comments on the operation of the interruptible water supply agreement. Such comments shall include any claim of injury or any terms and conditions that should be imposed upon the agreement so that it will not cause injury to a party's water rights or decreed conditional water rights, if such conditional rights will be exercised during operation of the interruptible water supply agreement, and any other information the party wishes the state engineer to consider in reviewing the application.

(b) The state engineer, after consideration of the comments from any party submitting comments, shall make a determination of the operation and administration of the interruptible water supply agreement to assure that such operation and administration 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 and decreed conditional water rights, if such conditional rights will be exercised during operation of the interruptible water supply agreement, and will not impair compliance with any interstate compact. The interruptible water supply agreement shall include, but shall not be limited to, a quantification of the historical consumptive use of the water right, an accurate description of the land where the water is decreed for use, and, if the loaned water right is being used for irrigation, a plan to prevent erosion and blowing soils and a description of compliance with local county noxious weed regulations and other land use provisions. The state engineer shall impose such terms and conditions as are necessary to ensure that these standards are met. In making the determinations specified in this paragraph (b), the state engineer shall not be required to hold any formal hearing or conduct any other formal proceedings, but may conduct a hearing or formal proceeding if the state engineer finds it necessary to address the issues.

(c) An interruptible water supply agreement approved pursuant to this section cannot be exercised for more than three years in a ten-year period, for which only a single approval is required. The ten-year period begins with the granting of the approval. A water right subject to the agreement under this section cannot use section 37-92-308 (5). The state engineer shall not approve an interruptible water supply agreement pursuant to this subsection (3) for another ten-year period, except:

(I) If the agreement has not been exercised during the term of the agreement, an applicant may reapply one time by repeating the application process pursuant to this subsection (3); and

(II) As specified in subsection (6) of this section.

(d) The applicant shall give notice by March 1 of any year that the option is to be exercised to all parties who filed comments with the state engineer pursuant to this section, unless earlier required in the agreement; except that the option may be exercised at any time during 2003.

(4) (a) When the state engineer approves or denies an interruptible water supply agreement, the state engineer shall serve a copy of the decision upon all parties to the application by electronic mail or, if a party has elected, by first-class mail. Neither the approval nor the denial of the agreement by the state engineer creates any presumptions, shifts the burden of proof, or serves as a defense in any legal action that may be initiated concerning the interruptible water supply agreement. Any appeal of a decision made by the state engineer concerning the operation of an interruptible water supply agreement pursuant to this section must be expedited, limited to the issue of injury, and made within thirty-five days after mailing of the decision to the water judge in the applicable water division. All parties to the appeal shall pay to the water clerk a fee to cover the direct costs associated with the expedited appeal. The water judge shall hear and determine the appeal using 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 any failure to appeal all or any part of the decision of the state engineer or failure to state any grounds for appeal to preclude any party from raising any claims of injury in a future proceeding before the water judge. The proponent of the interruptible water supply agreement is deemed to be the applicant for purposes of application of such procedures and standards. Moneys from the fee shall be transmitted to the state treasurer and deposited in the water adjudication cash fund, which fund is hereby created in the state treasury. The general assembly shall appropriate moneys in the fund for the judicial department's expedited adjudications pursuant to this section.

(b) A party to the original application may file comments concerning potential injury to such party's water rights or decreed conditional water rights due to the operation of the interruptible water supply agreement with the state engineer by January 1 of the year following the first year that the interruptible water supply agreement has been exercised. The procedures of subsection (3) of this section regarding notice, opportunity to comment, and the state engineer's decision, and the procedures of this subsection (4) regarding an appeal of such decision, shall again be followed with regard to such party's comments.

(5) Applicants for approval of an interruptible water supply agreement pursuant to this section shall pay a fee established by the state engineer, pursuant to rules promulgated by the state engineer. The state engineer shall collect the fees and transmit them to the state treasurer, who shall deposit them in the water resources cash fund created in section 37-80-111.7 (1).

(6) (a) (I) All of the substantive and procedural requirements of subsections (2) to (5) of this section apply to a subsequent approval of an interruptible water supply agreement except as specifically provided otherwise in this subsection (6).

(II) This subsection (6) applies only to a subsequent approval of an interruptible water supply agreement.

(b) A person may apply for no more than two subsequent approvals of the same interruptible water supply agreement.

(c) An applicant for subsequent approval of an interruptible water supply agreement must:

(I) Submit to the water clerk in each water division in which a loaned water right is located a resume of the application for approval of an interruptible water supply agreement submitted to the state engineer, and the water clerk shall publish the resumes in the manner set forth in section 37-92-302 (3) (a) and (3) (b), notwithstanding the fact that the applications were filed with the state engineer;

(II) File proof of the submission of the resume to the water clerk with the state engineer not later than ten days after the submission; and

(III) File proof of the notice to all parties who have subscribed to the substitute water supply plan notification list, as described in section 37-92-308 (6), with the state engineer within ten days after providing the notice.

(d) Owners of water rights have until the last day of the fourth month following the month in which the resume was submitted to the water clerk to file comments on the operation of the interruptible water supply agreement.

(e) The state engineer shall not approve an application for subsequent approval that would transfer or facilitate the transfer of water across the continental divide by direct diversion, exchange, or otherwise.

(f) The state engineer may approve a subsequent application for interruptible water supply agreement under this subsection (6) only:

(I) After making a determination of the operation and administration of the interruptible water supply agreement to assure that such operation and administration will not permit a borrowing water right user to rely on the exercise of multiple interruptible water supply agreements as its primary source of supply;

(II) If the terms and conditions imposed pursuant to paragraph (b) of subsection (3) of this section are no less restrictive than those imposed upon previously approved applications;

(III) If the agreement does not include a loaned water right that has already been approved as a loaned water right in a separate, unexpired interruptible water supply agreement; and

(IV) If the loaned water right subject to the agreement is not subject to more than two subsequent approvals regardless of the applicant, and any such subsequent approval cannot take effect until after any prior ten-year approval period has expired.

(g) The state engineer's approval or disapproval of a subsequent application for an interruptible water supply agreement under this subsection (6) constitutes final agency action subject to appeal in the water court in the water division in which the loaned water rights are located.

(h) The water judge shall expedite an appeal of the state engineer's decision only upon the request of any party to the appeal.

(i) For purposes of determining filing fees, the applicant or commenter that initiates the appeal shall pay fees established for water court change applicants, and all others shall pay fees established for persons filing statements of opposition.