2020 Colorado Revised Statutes
Title 37 - Water And Irrigation
Article 60. Colorado Water Conservation Board
Section 37-60-115. Water studies - rules - repeal.

(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.

2. 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.

3. The following information concerning potential dam and reservoir sites within thestate 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:

1. The location of a dam site, by river, county, and reference to surveyed section corners;

2. The name of a dam and reservoir site if one is commonly ascribed to it;

3. Basic data about a potential dam to the extent such is readily available;

4. The conditional water rights decreed to a site, if any, and their dates of adjudicationand basin ranks;

5. If available, an estimate of a reservoir's total active capacity;

6. The potential uses of the water supply which would be developed; and

7. Citations to reference materials and sources for the information specified in thisparagraph (c).

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

5. 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 purpose of the pilot projects shall be to:

1. 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;

2. Create a baseline set of data and sound, transferable methodologies for measuringlocal 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;

3. Evaluate a variety of precipitation harvesting system designs;

4. Measure precipitation capture efficiencies;

5. Quantify the amount of precipitation that must be augmented to prevent injury todecreed water rights;

6. Compile and analyze the data collected; and

7. 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:

1. An application fee and, for pilot projects that are selected, an annual review fee;

2. The information to be included in the application, including a description of theproposed development and the proposed precipitation harvesting system;

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

4. 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:

1. During the term of the pilot project, operate according to a substitute water supplyplan, 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).

2. (A) Apply to the appropriate water court for a permanent augmentation plan prior tocompletion 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 paragraph (a) of this subsection (6). The board and the state engineer shall brief the water resources review committee created in section 37-98102 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 review committee by July 1, 2025. (e) This subsection (6) is repealed, effective 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:

1. Fallowing agricultural irrigation land; and

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

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

1. 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;

2. Evaluate the feasibility of delivering leased water to the temporary municipal, agricultural, environmental, industrial, or recreational users;

3. 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:

1. Historical consumptive use;

2. Return flows;

3. The potential for material injury to other water rights; and

4. 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:

1. The fallowing of the same land for more than three years in a ten-year period;

2. The fallowing of more than thirty percent of a single irrigated farm for more than tenconsecutive years;

3. The transfer or facilitation of the transfer of water across the continental divide bydirect diversion, exchange, or otherwise; or

4. The transfer or facilitation of the transfer of water out of the Rio Grande basin bydirect 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:

1. An application fee and, for selected pilot projects, an annual review fee;

2. The information to be included in the application, including a description of theproposed pilot project;

3. The maximum quantity of transferable consumptive water use per year for any single pilot project;

4. Notwithstanding paragraph (a) of this subsection (8), any geographic areas that arenot eligible for pilot projects;

5. 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:

1. Any claim of injury;

2. 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

3. 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:

1. The conference participants must meet within thirty days after final comments onthe application have been submitted;

2. At the conference, the conference participants must discuss how the pilot projectcould be structured to prevent material injury to other water rights and contract rights to water; and

3. Within fifteen days after the conference, the pilot project applicant and the owners ofwater 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:

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

2. Will not impair compliance with any interstate compact;

8. Criteria for selecting pilot projects that range in size and complexity;

9. Criteria for selecting pilot projects over a period ending on December 31, 2023, toprovide a window for potential pilot project sponsors to apply; (X) A requirement that a proposed pilot project:

1. Meet applicable local government land use requirements;

2. Prevent erosion and blowing soils; and

3. Comply with local county noxious weed regulations;

11. A requirement that, during the term of the pilot project, land and water included in apilot 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;

12. A requirement for periodic reports to the board on the operation of the pilot project; and

13. A requirement that priority is given to pilot projects that can be implementedusing existing infrastructure.

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

1. A description of the proposed pilot project;

2. An analysis of the historical use, the historical consumptive use, and the historicalreturn flows of the water rights or contract rights to water proposed to be used for temporary municipal, agricultural, environmental, industrial, or recreational use; and

3. A description of the source of water to be used to replace historical return flowsduring 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:

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

2. Will not impair compliance with any interstate compact; and

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

7. When the board approves or denies a pilot project application, it shall serve a copy ofthe 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.

8. (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 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 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. Repealed.

10. High groundwater administration and management pilot projects - report repeal. (a) The board, in consultation with the state engineer, shall select two pilot projects for the purpose of providing the board and the state engineer with sufficient data to evaluate two alternative methods of lowering the water table in areas along the South Platte river that are experiencing damaging high groundwater levels.

(b) (I) One pilot project must be located in district 2 of division 1, within or near the town of Gilcrest, Colorado, or the town of LaSalle, Colorado. The other pilot project must be located in district 64 of division 1, within or near the city of Sterling, Colorado. Each project must be four years in duration and must be designed to demonstrate a proposed method for effectively lowering the water table. The board, in consultation with the state engineer, shall determine that a proposed method of lowering the water table is locally appropriate for the geographic area in which the pilot project will be implemented before approving it.

(II) An approved pilot project must:

1. Be accurately monitored in real time in accordance with tracking and testing methods determined by the board in consultation with the state engineer to determine the immediate impacts that the pilot project has on the water table; and

2. During the term of the pilot project, operate according to a substitute water supplyplan approved annually by the state engineer under section 37-92-308 (4) or (5).

(c) After providing at least forty-five days' notice of proposed criteria and guidelines and an opportunity for public comment on them, the board, in consultation with the state engineer, shall establish criteria and guidelines for the pilot program, including at least the following:

1. An application fee and, for the approved pilot projects, an annual review fee;

2. The information to be included in the application;

3. A period of at least seventy-five days within which the state engineer receives comments on an application after providing notice pursuant to the process set forth in paragraph (d) of this subsection (10). The comments may include:

1. Any claim of injury;

2. 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, contract rights to water, or compliance with any interstate compact; and

3. Other information that the person filing the comment believes the board and the stateengineer should consider in reviewing the application.

4. Criteria for selecting pilot projects; and

5. Guidelines for the operation and administration of the pilot projects to assure that thepilot projects will not cause injury to other water rights, decreed conditional water rights, contract rights to water, or compliance with any interstate compact.

4. For approval of a pilot project, an applicant must provide written notice of the application, including the location of the proposed pilot project, by either electronic mail or firstclass mail, to all parties that have subscribed to the substitute water supply plan notification list, as described in section 37-92-308 (6), for water division 1. The applicant must file proof of the written notice with the board.

5. (I) When the board, in consultation with the state engineer, approves or denies a pilotproject application, the board shall serve a copy of the decision on all parties to the application by electronic mail or, if elected by the parties, by first-class mail.

2. The board's approval or denial of a pilot project application is a final agency actionthat may be appealed. An appeal must be filed with the appropriate water judge and be made within thirty-five days after the board's decision has been served in accordance with subparagraph (I) of this paragraph (e).

3. The water judge shall use the procedures and standards set forth in sections 37-92304 and 37-92-305 to determine 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 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.

6. The board, in consultation with the state engineer, shall annually report to the waterresources 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 review committee or its successor committee by September 1, 2021.

7. This subsection (10) is repealed, effective July 1, 2022.

(11) Repealed.

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.

Editor's note: (1) Subsection (5)(d) provided for the repeal of subsection (5), effective

July 1, 2008. (See L. 2006, p. 1236.)

2. Subsection (9)(e) provided for the repeal of subsection (9), effective July 1, 2017. (See L. 2014, p. 1653.)

3. Subsection (11)(h) provided for the repeal of subsection (11), effective July 1, 2018. (See L. 2016, p. 1108.)

Cross references: For the legislative declaration contained in the 1996 act amending subsections (2), (4)(a), (4)(d), and (4)(e), see section 1 of chapter 237, Session Laws of Colorado 1996. For the legislative declaration in the 2012 act adding subsection (7), see section 1 of chapter 239, Session Laws of Colorado 2012. For the legislative declaration in the 2013 act adding subsection (8), see section 1 of chapter 210, Session Laws of Colorado 2013.