Administrative Record 1-11

• Year: 2009
• Instream Flow Rules - Doc Type: Rulemaking Hearings

Memorandum
•
To: Linda Bassi
Colorado Water Conservation Board
From: Front Range Water Council
Date: ~Zay 30, 2008
Subject: H.B. 08-1280 Criteria
Introduction
H.B. 08-1280 amended C.R.S. §37-92-102 to provide:
``...the Board shall adopt criteria for evaluating proposed contracts or agreements for
leases or loans of water, water rights, or interest in water under this subsection (3),
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."
In addition, as adopted, the bill provides that the lease or loan must be "administrable" and
"capable of meeting all applicable statutory requirements." Finally, and importantly, the bill also
• supplemented C.R.S. X37-92-305 by adding a paragraph (b) pursuant to which decrees for
changes of water rights designed to implement such leases or loans must provide:
``...that the Board or the lessor, lender, or donor of the water right may bring about
beneficial use of the historical consumptive use of the changed water right
downstream of the instream flow reach as fully consumable reusable water, subject to
such terms and conditions as the water court deems necessary to prevent injury to
vested water rights or decreed conditional water rights."
With this background in mind, the Front Range Water Council (FRWC), whose members include
the I~,~orthern Colorado Water Conservancy District, Aurora Water, Denver Water, the
Southeastern Colorado Water Conservancy District, Colorado Springs Utilities, the Pueblo Board
of Water Works and the Twin Lakes Company submits the following comments and suggestions
upon the criteria to be adopted by the Board.
Discussion
A. General Comments: The FRWC believes it is necessary to place its comments in the
appropriate context. None of the members of the FRWC oppose either the concept of the CWCB
acquiring instream flows through long-term leases or the concept that such leases should not lead
to a reduction in the historical consumptive use of the leased water right. However, the FRWC
does foresee some potential pitfalls in the agreement process if the individual transactions are not
consummated in a thoughtful manner. The legislature, as well as CWCB Board members when
• the legislation was first discussed, evidently shared this concern; hence, the mandate for adopting
criteria to evaluate the proposed contracts. In particular, the following factors should be
considered wwwhen developing the criteria: