HB08-1280FactSheet

• Year: 2008
• Title: Concerning Protection of Water Rights Used by the CWCB for Instream Flows Under Contracts with Water Rights Owners
• CWCB Section: Stream & Lake Protection
• Author: CWCB
• Description: Concerning Protection of Water Rights Used by the CWCB for Instream Flows Under Contracts with Water Rights Owners
• Publications - Doc Type: Fact Sheets

C OLORAD 0 WATER C ONSERVATION B OARD
Department of Natural Resources C
Bill Ritter, Jr., Governor
Harris D. Sherman, DNR Executive Director a
c
Jennifer L. Gimbel, CWCB Director `
March 2008
CON,
193~
~
HB 08-1280 - CONCERNING PROTECTION OF ~VATER RIGHTS
USED BY THE CWCB FOR INSTREAM FLOWS UNDER
CONTRACTS WITH WATER RIGHTS OWNERS
Background
The Colorado General Assembly established the
Instream Flow and Natural Lake Level Program in
1973. The Colorado Water Conservation Board
("CWCB") may "appropriate ... or acquire such
waters of natural streams and lakes as may be
required to preserve the natural environment to a
reasonable degree." Section 37-92-102(3) authorizes
the CWCB to "acquire, by grant, purchase, donation,
bequest, devise, lease, exchange, or other contractual
agreement, from or with any person, including any
governmental entity, such water, water rights, or
interests in water in such amount as the board
determines is appropriate for stream flows or for
natural surface water levels or volumes for natural
lakes to preserve or improve the natural environment
to a reasonable degree."
In addition to accepting numerous permanent
donations of water for instream flow use, the CWCB
has entered into leases and other contractual
arrangements for approximately 4, 150 acre-feet and
13.5 cfs of water for instream flow use. Under most
of these agreements, the water right owner retains
ownership of and the ability to use the subj ect water
right for its original decreed use. The potential loss
of value of the original water right has emerged as a
potential stumbling block for lease transactions. The
problem arises because, unlike more traditional
beneficial uses of water, which involve diversions
and consumptive use, instream flow uses simply
leave water in the stream to preserve or improve the
natural environment. Under current Colorado water
law, periods of zero diversions and no consumptive
use are counted when establishing the historic use of
a water right which, in turn, determines the value of
that water right. Because instream flow uses do not
involve a diversion or consumptive use, absent
statutory protections, lessors risk a decrease in the
value of their water rights, Last year, the state
legislature enacted HB 07-1012, which protects water
rights owners from loss of consumptive use and the
presumption of abandonment when they loan or lease
water to the CVUCB for short periods of time.
However, the bill did not extend the protection to
longer term leases or loans of water under section 37-
92-102(3), which are critical for effective, long term
restoration efforts. The changes in the law described
below will provide protection in the context of future
water court proceedings to water rights owners who
contract with the CWCB for use of all or a portion of
a water right for instream flow use.
What the Bill does:
~ Amends section 37-92-102(3) to:
• require the CWCB to adopt criteria for
evaluating proposed contracts for leases or
loans of water, including, but not limited to,
criteria addressing
• public notice;
• the extent to which the leased or loaned
water will benefit the natural
environment to a reasonable degree; and
• calculation of the compensation paid to
the lessor of the water based upon the use
of the water after the term of the lease.
For more information, contact
Linda Bassi at the CWCB at [phone].
1313 Sherinan Street, Room 721, Denver, C0, 80203
Phone: [phone] FAX: [phone] Internet: www.cwcb.state.co.us