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<br />- (2) (a) Moneys transferred to the fish and wildlife resources.ount in
<br />the Colorado water conservation board construction fund pursuant to the
<br />provisions of section 37-60-121 (6) are hereby continuously appropriated to
<br />the Colorado water conservation board for the purpose of making grants
<br />pursuant to this subsection (2) and for offsetting the direct and indirect costs
<br />of the board for administering the grants. Of the interest earned from the
<br />investment of the moneys in the account, fifty percent shall be credited to
<br />the account and the remaining fifty percent shall be transferred to the Colo-
<br />rado water resources and power deyelopment authority. The state treasurer
<br />and the controller shall transfer the interest earnings due the authority to
<br />the autho~ity at the end of each fiscal year.
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<br />37-60-122.2. Fish and wildlife resources - legislative declaration - fish and
<br />wildlife resources account. (I) (a) The general assembly hereby recognizes
<br />the responsibility of the state for fish and wildlife resources found in and
<br />around state waters which are affected by the construction, operation, or
<br />maintenance of water diversion, delivery, or storage facilities. The general
<br />assembly hereby declares that such fish and wildlife resources are a matter
<br />of statewide concern and that impacts on such resources should be mitigated
<br />by the project applicants in a reasonable manner. It is the intent of the gen-
<br />eral assembly that fish and wildlife resources which are affected by the con-
<br />struction, operation, or maintenance of water diversion, delivery, or storage
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<br />(b) To the extent that the cost of implementing the mitigation recom-
<br />mendation made pursuant to subsection (I) of this section exceeds five per-
<br />cent of the costs of a water diversion, delivery, or storage facility, the board
<br />shall, upon the application of the applicant, make a mitigation grant to the
<br />applicant. The amount of the grant shaH be sufficient to pay for the miti-
<br />gation recommendation as determined by this section to the extent required
<br />above the applicant's five percent share. Any additional enhancement shaH
<br />be at the discretion and within the means of the board. Under no circum-
<br />stance shall the total amount of the grant exceed five percent of the construc-
<br />tion costs of the project, or be disbursed in installments that exceed seventy
<br />percent of the amount of the grant during any fiscal year. Any mitigation
<br />cost in excess of ten percent of the construction costs of a project shaH be
<br />borne by the applicant.
<br />(c) An applicant may apply for an enhancement grant by submitting to
<br />the commission and the board an enhancement proposal for enhancing fish
<br />and wildlife resources over and above the levels existing without such facili-
<br />ties. The commission shall submit its recommendations on the proposal to
<br />the board for its consideration. The board with the concurrence of the com-
<br />mission may award a grant for fish and wildlife enhancement. Any such
<br />enhancement grant will be shared equally by the Colorado water conservation
<br />board's fish and wildlife resources account and the division of wildlife's wild-
<br />life cash funds and other funds available to the division.
<br />(d) For the purpose of this subsection (2), construction costs means the
<br />best estimate of the physical construction costs as fixed by the Colorado
<br />water conservation board as of the date of the grant application. Costs should
<br />be limited to design, engineering and physical construction and will not
<br />include the costs of planning, financing, and environmental documentation,
<br />mitigation costs, legal expenses, site acquisition or water rights.
<br />(3) Decisions relating to the official state mitigation position made pur-
<br />suant to paragraph (c) of subsection (I) of this section shaH not be subject
<br />to judicial review.
<br />(4) The board shaH distribute mitigation and enhancement grants reason-
<br />ably and equitably among water basins toward the end that those projects
<br />sponsored by beneficiaries east of the continental divide receive fifty percent
<br />of the money granted and those projects sponsored by beneficiaries west of
<br />the continental divide receive fifty percent of the money granted under this
<br />section.
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<br />facilities which are permitted, licensed, or receive approval from the United
<br />States after July 13, 1987, should be mitigated to the extent, and in a manner,
<br />which is economically reasonable and maintains a balance between the devel-
<br />opment of the state's water resources and the protection of the state's fish
<br />and wildlife resources.
<br />(b) Except as provided in this paragraph (b), the applicant for any water
<br />diversion, delivery, or storage facility which requires an application for a
<br />permit, license, or other approval from the United States shall inform the
<br />Colorado water conservation board, wildlife commission, and division of
<br />wildlife of its ~pplication and submit a mitigation proposal pursuant to this
<br />section. Exempted from such requirement are the Animas-La Plata project,
<br />the Two Forks dam and reservoir project, and the Homestake water project
<br />for which definite plan reports and final environmental impact statements
<br />have been approved or which are awaiting approval of the same, applicants
<br />for site specific dredge and fill permits for operations not requiring construc-
<br />tion of a reservoir, and applicants for section 404 federal nationwide permits.
<br />If an applicant that is subject to the provisions of this section and the com-
<br />mission agree upon a mitigation plan for the facility, the commission shall
<br />forward such agreement to the Colorado water conservation' board, and the
<br />board shaH adopt such agreement at its next meeting as the official state
<br />position on the mitigation actions required of the applicant. In all cases the
<br />commission shaH proceed expeditiously and, no later than sixty days from
<br />the applicant's notice, unless extended in writing by the applicant, make its
<br />evaluation regarding the probable impact of the proposed facility on fish
<br />and wildlife resources and their habitat and to make its recommendation
<br />regarding such reasonable mitigation actions as may be needed.
<br />(c) The commission's evaluation and proposed mitigation recommenda-
<br />tion shall be transmitted to the Colorado water conservation board. The
<br />board within sixty days, unless extended in writing by the applicant, shall
<br />either affirm the mitigation recommendation of the commission as the offi-
<br />cial state position or shall make modifications or additions thereto supported
<br />by a memorandum that sets out the basis for any changes made. Whenever
<br />modifications or additions are made by the board in the commission's miti-
<br />gation recommendation, the governor, within sixty days, shall affirm or
<br />modify the mitigation recommendation which shall then be the official state
<br />position with respect to mitigation. The official state position, established
<br />pursuant to this subsection (I) shaH be communicated to each federal, state,
<br />or other governmental agency from which the applicant must obtain a permit,
<br />license, or other approval.
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