Water Issues
COMMENTARY:
Sections 2 through 4 seeks a two year moratorium. It extends the authority of the state engineer under subsection (4) of the 2002 Act to approve substitute water supply plans without a court decree.
Section 5 clarifies that augmentation plans and the State Engineer do not impose past pumping replacement obligations originating prior to an augmentation plan (past pumping depletion replacement). Past pumping depletion replacement can commence only under the plan.
Section 6 and 7 state the policy of the legislature to commence a two year study during which pumping shall be allowed as much as possible, and during which an interim study committee will be convened.
AUGMENTATION CLARIFICATION ACT
Section 1. This Act may be known as the Augmentation Clarification Act of 2007.
Section 2. Section 37-92-308(4)(b), second sentence, shall be amended by deleting “that would extend the plan past three years from the initial date of approval” and inserting “or plan that would extend past May 1, 2007,”.
Section 3. Section 37-92-308(4)(b), third sentence, shall be amended by deleting “five years from the initial date of approval” and inserting “December 31, 2008,”
Section 4. Section 37-92-308(4)(a)(IV), shall be amended by inserting the following third sentence:
“The State Engineer shall consider replacement water available to the junior priority user and actual injury demonstrated to be likely to occur to owners of vested senior water rights during the period of the plan.”
Section 5. Section 37-92-305(8), fourth sentence,
Shall be amended to read as follows:
“Said terms and conditions shall require replacement of out-of-priority depletions that occur after any groundwater diversions UNDER THE PLAN cease.”
Section 6. The statute shall be amended by adding the following: “Section 37-92-308.5. Substitute water supply plan extensions-legislative declaration.
(1) The General Assembly hereby finds, determines and declares that:
(a) Circumstances have arisen since the enactment of Section 37-92-308 which were not anticipated at that time. It is the policy of the General Assembly to reevaluate the consequences of augmentation plan requirements and the associated changed administration of the South Platte River in Division 1 by the State Engineer.
(b) It is possible that the policy of the state of Colorado to maximize optimal beneficial use of the waters of the state is not being achieved by present application of the statute and present administration of Division 1, and that actual injury suffered by owners of senior water rights caused by well pumping should be determined.
(c) The State Engineer decision support system for the South Platte River is not yet complete and should be a resource for decision making prior to any further drastic changes in well pumping. A hydrological evaluation of the South Platte River Valley is appropriate.
(d) It is the policy of the State of Colorado to determine how administration of the Division 1 may best preserve the maximum beneficial use of the priority system including wells with decreed priorities prior to 1969.
(2) To assure maximum optimal beneficial use of the waters of the South Platte River, including its underground aquifer, the State Engineer and Division 1 Engineer shall exercise the broadest latitude possible to authorize groundwater well pumping pursuant to substitute water supply plans pursuant to Section 37-92-308(4) during the 2007 and 2008 irrigation seasons, and shall not curtail pumping where evidence of actual injury to senior water rights is not documented to the satisfaction of the State Engineer.
(3) In authorizing substitute water supply plans, the State Engineer shall require all well pumpers and applicants to retain existing plans, contracts, leases and decreed rights for the replacement of water and shall return such waters to the River in accordance with existing plans, contracts, leases and decreed rights. All replacement water obtained for the purposes of augmentation plans and substitute water supply plans shall be retained for such purposes.
Section 7. An Interim Committee for the Study of Augmentation Requirements and State Engineer Administration in Division 1 is hereby created to consist of six members, three appointed from both the Senate and the House, to be supported by staff appointed by the Commissioner of Agriculture, the Director of Natural Resources, the Office of State Engineer and Office of Division 1 Engineer. The Office of Attorney General shall provide such legal assistance as the Committee may request. The Committee may assemble an advisory committee of representatives of the various water use and economic interests in the South Platte River valley, including, but not limited to, surface agricultural irrigation users, groundwater irrigation well users, municipal water users, industrial water users, water conservancy districts, sanitation and water districts, and local governments and school districts. The primary focus of the study shall be administration of the South Platte River commencing north of the Denver metropolitan area and extending to the Nebraska state line. The Committee shall study groundwater pumping and the actual injury experienced by senior water rights attributable to pumping. The Committee shall report its findings and recommendations to the General Assembly in writing on or before October 1, 2008.