2020 Colorado Revised Statutes
Title 37 - Water And Irrigation
Article 75. Interbasin Compacts
Section 37-75-105. Interbasin compact committee - report.

(1) (a) To facilitate the process of interbasin compact negotiations, a twenty-seven-member interbasin compact committee is hereby created. The interbasin compact committee shall include two representatives from each basin roundtable, at least one of whom shall reside within the borders of the roundtable and at least one of whom shall own adjudicated water rights, including owners of shares in a ditch or reservoir company or their agents, six at-large members appointed by the governor, one member appointed by the chairperson of the house agriculture, livestock, and natural resources committee, one member appointed by the chairperson of the senate agriculture, natural resources, and energy committee, and the director of compact negotiations. The governor's appointments shall come from geographically diverse parts of the state and shall include individuals with expertise in environmental, recreational, local governmental, industrial, and agricultural matters. No more than three of the governor's appointees shall be affiliated with the same political party. Any such agent shall be appointed by the member the agent represents and shall reside within the borders of the member's roundtable.

(b) As soon as practicable following June 7, 2005, the committee shall establish bylaws to govern its actions, including a procedure whereby basin roundtables that opt out of the procedures established in this article are no longer represented on the committee but may opt back in.

(2) (a) Not later than July 1, 2006, the interbasin compact committee shall establish and refer to the general assembly an interbasin compact charter that shall govern and guide all negotiations between basin roundtables under this article. Upon receipt, consideration, and approval of the charter by the general assembly acting by bill, negotiations between basin roundtables may commence. Any compact or other agreement established using the procedures established in this article shall fully comply with the terms, requirements, and procedures established in the interbasin compact charter as approved pursuant to this subsection (2).

(b) The general assembly hereby approves the interbasin compact charter as submitted to the general assembly on April 6, 2006, by the interbasin compact committee. The revisor of statutes shall publish the full text of the charter in the Colorado Revised Statutes as nonstatutory matter in accordance with section 2-5-102 (9), C.R.S.

(3) At a minimum, the interbasin compact charter shall include the following:

1. A negotiating framework and foundational principles to guide voluntary negotiationsbetween basin roundtables, including present and future consumptive and nonconsumptive water uses and such policies as may be necessary to ensure that compacts or other agreements between roundtables do not conflict or otherwise not conform with one another;

2. Subject to the principles established in section 37-75-102, procedures for ratifyingcompacts or other agreements between basin roundtables, including the requirement that every basin roundtable whose waters are affected by a proposed compact or other agreement shall provide its affirmative support for such proposed compact or other agreement before such compact or agreement is final or binding;

3. As deemed appropriate by the interbasin compact committee but subject to the principles established in section 37-75-102, authorities and procedures for making compacts or other agreements between roundtables legally binding and enforceable; and

4. As deemed appropriate by the interbasin compact committee, procedures for integrating the processes established in this article with existing planning, permitting, and public participation processes related to the conservation and development of water within Colorado; except that no provision of the charter shall supercede, impair, or otherwise modify the authority, jurisdiction, or permitting powers of counties or other local government entities.

4. Notwithstanding section 24-1-136 (11)(a)(I), commencing in 2006, the committeeshall submit an annual report to the house of representatives committee on agriculture, livestock, and natural resources and the senate committee on agriculture, natural resources, and energy, or their successor committees, by October 31 concerning the status of compact negotiations and, in consultation with the Colorado water conservation board created in section 37-60-102, how money from the water supply reserve fund created in section 39-29-109 (2)(c) was allocated during the previous twelve months for water activities approved by basin roundtables.

5. The committee shall be deemed to be a state public body for purposes of the openmeetings law, part 4 of article 6 of title 24, C.R.S.

Source: L. 2005: Entire article added, p. 1476, § 1, effective June 7. L. 2006: (2) amended, p. 1282, § 1, effective May 26. L. 2007: (2)(a) amended, p. 2048, § 94, effective June 1. L. 2009: (4) amended, (SB 09-106), ch. 386, p. 2091, § 4, effective July 1. L. 2012, 1st Ex. Sess.: (4) amended, (SB 12S-002), ch. 1, p. 2420, § 17, effective May 19. L. 2017: (4) amended, (HB 17-1257), ch. 254, p. 1067, § 13, effective August 9.

Editor's note: Subsection (2) provides that the revisor of statutes shall publish the full text of the "Colorado Water for the 21st Century Interbasin Compact Committee Charter" in the Colorado Revised Statutes as nonstatutory matter in accordance with section 2-5-102 (9), Colorado Revised Statutes. The charter is as follows:

The Colorado Water for the 21st Century Interbasin Compact Committee Charter

I. Preamble

The Colorado Water for the 21st Century Act creates a voluntary, collaborative process to help the state address its water challenges. The process is based upon the premise that Coloradoans can work together to address the water needs within the state. The Act sets up a framework that provides a permanent forum for broad-based water discussions. It creates nine Basin Roundtables and the Interbasin Compact Committee (IBCC), a statewide committee that will guide discussions and voluntary negotiations between basins.

The IBCC is mandated to: 1) Establish bylaws to govern its actions, 2) Establish and refer to the general assembly an interbasin compact charter that shall govern and guide all negotiations between Basin Roundtables, 3) Submit an annual report to the legislature concerning the status of compact negotiations, and 4) Develop a public education, participation, and outreach working group.

HB 05-1177 states that the IBCC Charter should contain a negotiating framework and foundational principles to guide voluntary negotiations between Basin Roundtables, including present and future consumptive and nonconsumptive water uses and such policies as may be necessary to ensure that compacts or other agreements between Roundtables do not conflict or otherwise not conform with one another.

II. Foundational Legal Principles

The following foundational legal principles are drawn from the text of the legislation.

1. The current system of allocating water within Colorado shall not be superseded, abrogated, or otherwise impaired by this article.

2. Nothing in HB 05-1177 shall be interpreted to repeal or in any manner amend theexisting water rights adjudication system.

3. HB 05-1177 affirms the state constitution's recognition of water rights as a privateusufructuary property right, and is not intended to restrict the ability of the holder of a water right to use or to dispose of that water right in any manner permitted under Colorado law.

4. HB 05-1177 affirms the protections for contractual and property rights recognized bythe contract and takings protections under the state constitution and related statutes.

5. HB 05-1177 shall not be implemented in any way that would diminish, impair, orcause injury to any property or contractual right created by intergovernmental agreements, contracts, stipulations among parties to water cases, terms and conditions in water decrees, or any other similar document related to the allocation or use of water.

6. HB 05-1177 shall not be construed to supersede, abrogate, or cause injury to vestedwater rights or decreed conditional water rights.

7. HB 05-1177 does not impair, limit, or otherwise affect the rights of persons or entitiesto enter into agreements, contracts, or memoranda of understanding with other persons or entities relating to the appropriation, movement, or use of water under other provisions of law.

III. Foundational Guiding Principles

The IBCC is informed and guided by the following foundational principles, which will provide a framework for future discussions.

1. All Colorado water users must share in solving Colorado's water resource problems.

2. The State of Colorado should provide assistance, when requested, for local water supply planning and assist in the implementation of consensus-based water resource solutions that respect local authorities, private property and water rights.

3. During the process of planning to meet future needs, water suppliers and utilitiesshould give preference to development of economically viable local water sources and demand management as they consider other options, including development of new water transfers.

4. Additional water storage should be pursued through the improvement and rehabilitation of existing structures and the development of new structures. These activities should be accomplished with local consensus.

5. The right of water rights owners to market their water rights must be protected.

1. Colorado must fully explore flexible, market-based approaches to water supply management, including interruptible water contracts, water banking, in-state water leasing and groundwater recharge management.

2. Those seeking to transfer agricultural water to another use should consider leasing orother temporary arrangements for transfer of water, rather than relying exclusively on the purchase of water rights. Leasing or other such temporary arrangements could allow for reversion of the water to agricultural purposes under certain conditions.

3. In the event that agricultural water is transferred, the transaction must adequately

address the need for maintaining the existing tax base, protecting the remaining water rights in the area, and maintaining the proper stewardship of the land including revegetation and weed control.

6. Appropriate recognition should be given to preservation of flows necessary to supportrecreational, hydroelectric and environmental needs concurrent with development of water for beneficial consumptive uses.

7. Adverse economic, environmental, and social impacts of future water projects andwater transfers should be minimized; unavoidable adverse impacts must be reasonably mitigated; all communities involved should commit themselves to identifying and implementing reasonable mitigation measures as an integral part of future water projects or transfers.

8. Future water supply solutions must benefit both the area of origin and the area of use.

9. Water conservation measures that do not injure other water rights should be aggressively pursued.

10. There must be an ongoing, concerted effort to educate all Coloradoans on the importance of water, and the need to conserve, manage, and plan for the needs of this and future generations.

IV. Roles of the Committee The IBCC will:

1. Provide a forum to develop and disseminate information, create a positive environment for a statewide perspective, and develop a vision for statewide water negotiations;

2. Serve as a forum for discussing and addressing the socio-economic, recreation andenvironmental impacts of water development and management, as well as potential impacts on the ability of the state to use its entitlements and meet its Interstate Compact requirements.

3. Assist in finding resources to enable Roundtables to develop basin-wide visions;

4. Encourage development of a common technical platform upon which negotiations canbe based;

5. Guide the process of negotiating interbasin compacts and other agreements by providing a framework that creates incentives for successful deliberations, agreements, and their implementation; and

6. Perform all other roles and functions of the IBCC identified in legislation.

V. Use of the Negotiation Charter

1. Discussions or negotiations conducted under the framework of the IBCC offer anopportunity for parties with water rights, project proponents, others concerned about water issues and Basin Roundtables to collaboratively search for solutions that hold mutual benefit, avoid litigation, and are sustainable and stable.

2. While all negotiations are voluntary and may be conducted directly between the parties with water rights, project proponents, others concerned about water issues and Basin Roundtables involved, parties are encouraged but not compelled to use the IBCC framework as a forum for discussions and as a way to keep all parties informed.

3. Should the Basin Roundtables feel it necessary or beneficial to bring discussion of aparticular topic, issue, or proposal of interest to one or more basins before the entire IBCC, the committee members representing the basin(s) may raise the issue during a meeting of the IBCC. The IBCC will then decide on a procedure that will be utilized by the IBCC for discussing the issue or proposal.

4. Every Basin Roundtable whose waters are affected by a proposed compact or otheragreement negotiated under the framework of the IBCC and Basin Roundtables, must provide its affirmative support for such proposed compact or other agreement before such compact or other agreement can be approved or ratified by the IBCC.

VI. Negotiating Framework

1. The IBCC, in helping Roundtables reach agreements, will encourage the use of a collaborative decision making process. Collaborative decision making processes may include but are not limited to:

1. Unassisted cooperative problem solving and/or negotiation.

2. Assisted cooperative problem solving and/or negotiation by facilitation and/or

mediation.

3. Adaptive management.

4. Any other procedures on which Roundtables can mutually agree.

2. Informed constituencies will enhance the prospects for acceptance of compacts or other agreements negotiated by the Roundtables or decisions made by the IBCC.

1. Members of the IBCC who represent constituencies or agencies will inform their constituents and solicit their opinions about the issues under discussion. They will represent the interests of their constituent group and bring their constituents' concerns and ideas to the deliberations.

2. Members of the IBCC may elect to hold regular meetings with their constituent group(a formal caucus), to provide copies of work session minutes to their constituents and request comments, and to communicate informally with their constituents.

3. Prior to any decision being made by the IBCC, representatives will have adequatetime to consult with their constituents or other relevant officials to explain deliberations and gain their input and/or approval.

4. IBCC meetings will be open to the public. In order for the IBCC to achieve its

mission, discussion and deliberation at work sessions must be focused and manageable. Participation by non-members of the IBCC will be at the discretion of the Director of Compact Negotiations. IBCC will include a period for public comment at each of its meetings.

VII. Agreements Between Roundtables

1. Basin Roundtables choosing to enter into agreements with other Basin Roundtables are responsible for the form and structure of those agreements. Where appropriate and in a mutually agreed upon manner, agreements will have authorities and procedures addressing the extent to which the agreements are legally binding and enforceable.

VIII. Integration with other Processes

1. The IBCC will coordinate as appropriate with existing planning, permitting, and public participation processes related to the conservation and development of water within Colorado. No provision of this Charter is intended to supersede, impair, or otherwise modify the authority, jurisdiction, planning or permitting powers of counties or other local government entities.

IX. Ratification of Negotiated Agreements

1. Every Basin Roundtable whose waters are affected by a proposed compact or otheragreement negotiated under the framework of the IBCC and Basin Roundtables must provide its affirmative support for such proposed compact or other agreement before such compact or other agreement can be approved or ratified by the IBCC.

2. The IBCC will review from a statewide perspective all compacts or other agreementsreached by Basin Roundtables or other concerned parties, which are referred to it for assessment and ratification. If questions or concerns arise during the IBCC's review and approval process, the Committee will communicate its questions or concerns to involved Roundtables or parties through appropriate Basin representatives to the IBCC. The IBCC may choose to defer further discussion of a compact or other agreement until its questions or concerns have been adequately addressed.

3. When reviewing or ratifying compacts or other agreements reached by Basin Roundtables or other concerned parties, the IBCC will first use a decision making process that seeks to identify and positively affirm a broad general level of support for or approval of the issue or proposal in question by all Committee members. An agreement will be considered to have been reached when either the facilitator or a group member has articulated the proposed agreement, and all IBCC members either verbally affirm their support for it, or at a minimum agree not to actively oppose or subvert it. The above process does not require all Committee members to support a proposal or ultimate agreement to the same degree for an agreement to have been reached. Some members may strongly endorse an agreement, while others may believe it to be not ideal, but ultimately workable and acceptable.

4. When a decision is being made using the above process, any IBCC member mayrequest a non-binding poll of Committee members to determine their views. Members may voice affirmative support for a proposal or agreement, remain silent and allow the agreement to be approved without objection, or state that a broad general level of agreement has not been reached, and request the committee to continue deliberations.

5. If the IBCC cannot reach a mutually acceptable agreement on a proposed compact orother agreement that has been brought to it for review and ratification, its members will use the following procedure. After a complete discussion of the issue(s) in question has occurred at three or more IBCC meetings, and all members have had an opportunity to consult their Basin Roundtables and been given a fair opportunity to present their views and be heard, the Committee may change its decision making process from one seeking broad support for or agreement on an issue or proposal in question, to a majority/minority vote. The shift from one decision making procedure to another will require a 75% or greater majority of the members attending the meeting in favor of the shift. In addition, all IBCC members must have been given the opportunity to be present at the meeting at which the vote to shift decision making procedures is taken, and properly notified of the proposed action.

6. If a 75% majority of IBCC members attending the meeting do not approve changingthe decision making process, the issue(s) under consideration along with IBCC members questions or concerns will be returned to concerned Roundtables or parties for further clarification and/or to be addressed by the Roundtables or parties.

7. If a 75% majority of IBCC members attending the meeting vote to shift the IBCC'sdecision making process to voting, a decision by vote may be made at the next regularly scheduled IBCC meeting. A compact or other agreement will be considered to have been approved or ratified by the IBCC if a 75% majority of IBCC members attending the meeting vote to approve it. All IBCC members must have been given the opportunity to be present at the meeting at which the vote is taken, and properly notified of the proposed action. Following the vote, majority and minority reports will be prepared. Reports will indicate the number of IBCC members that support each view. Reports will be forwarded to concerned parties and made available to the general public.

X. Provisions for Modification of the Charter

1. Proposals for revision of the Charter can be raised by any IBCC member at any time.

2. Final revisions to the IBCC Charter can only be made after discussions of revisionshave occurred at two consecutive regularly scheduled meetings. This procedure will allow time for members to deliberate and consult other parties as appropriate. If an agreement cannot be reached in two meetings, a third may be allowed.

3. When revising the IBCC's Charter, the Committee will first use a decision makingprocess similar to the one described above for review and approval of compacts or agreements between Basin Roundtables or other concerned parties. The process will seek to identify and positively affirm a broad general level of support for or approval of a proposed change to the Charter by all Committee members. An agreement will be considered to have been reached when either the facilitator or a group member has articulated the proposed change in the Charter, and all IBCC members either verbally affirm their support for it, or at a minimum agree not to actively oppose or subvert it.

4. When a decision is being made using the above process, any IBCC member mayrequest a non-binding poll of Committee members to determine their views on the proposed change to the Charter.

5. If the IBCC cannot reach a mutually acceptable agreement on a proposed change tothe Charter, Committee members will use the following procedure. After a complete discussion of issue(s) in question has occurred at two or more IBCC meetings, and all members have had an opportunity to consult their Basin Roundtables and been given a fair opportunity to present their views and be heard, the Committee may change its decision making process from one seeking broad support for or agreement on a proposal, to a majority/minority vote. The shift from one decision making procedure to another will require a 75% or greater majority of IBCC members present at the meeting in favor of the shift. All IBCC members must have been given the opportunity to be present at the meeting at which the vote to shift decision making procedures is taken, and properly notified of the proposed change.

6. If a 75% majority of IBCC members present at the meeting do not approve a shift inthe decision making procedure, the charter modification under consideration may be dropped. Alternatively, the IBCC may continue to discuss the proposed change with the goal of developing either a broad level of support for it or another mutually acceptable option, or the issue may be deferred until such time as a 75% majority of Committee members agree to change the decision making process.

7. If a 75% majority vote to shift the IBCC's decision has been attained, the proposal fora change may be voted on at the Committee's next regularly scheduled meeting. Approval of proposed changes will require a 75% majority of IBCC members. All IBCC members must have been given the opportunity to be present at the meeting at which the vote to change the Charter is taken, and properly notified of the proposed change.