BOARD00842

• Board Meeting Date: 5/20/2002
• Description: Implementation of New Legislation
• Board Meetings - Doc Type: Memo

Statement of Rep. Matt Smith on 2"d Reading Regarding SB 156

S.B. 156 represents a modification to the existing Colorado Water Conservation Board instream flow
program so as to more fully accommodate instream flow needs associated with the natural environment.
Specifically, it allows for the acquisition by the Board, by purchase or donation, on a temporary or
permanent basis, instream flows in greater than the "minimum" amount necessary to preserve the natural
environment. In other words, it modifies the historic statutory benchmark against which such
acquisitions were judged. In addition, it may add to the Board's water rights portfolio a greater number
of senior rights, as compared to those junior rights associated with new appropriations.

The bill language replaces the word "minimum" with the concept of "such amount as the Board
determines appropriate," providing the Board with a substantial amount of discretion and flexibility in
determining whether to accept the tendered water, water rights or interests in water, in whole or in part,
and if so, under what terms or conditions. It also expands the purposes for which such water may be
acquired by supplementing the existing "preservation" standard with the concept of "improvement."
Preservation is intended to mean reasonable protection of the environment that exists at the time the
CWCB acquires the water interest. While the word "improve" was the subject of a great deal of debate
and is still a cause of some constemation among certain parties, everyone should keep in mind that this
word is still qualified by the phrase "to a reasonable degree" as well as the previously referenced
"appropriate amount" language. Hence, the Board is still going to engage in a weighing and balancing
process between "the activities of mankind and reasonable preservation or improvement." The word
"improve" is not intended to connote returning the environment to a pristine condition. In fact, the
Board may develop rules to clarifY its intent in this regard.

The legislation was designed to address those situations wherein the natural environment had been
degraded in the past and there was presented an opportunity to improve upon existing conditions. It is
certainly not designed to "improve" upon what was the historical natural state of the stream system. In
addition, contrary to the concems expressed by some, it is not intended to in any manner modify the
current statutory relationship between water quality and water quantity and does not represent
authorization for the Board to acquire water rights for dilution flow purposes.

In determining whether to purchase or accept water, water rights or interests in water, the Board will
have to consider a number of factors, including the ability to administer the instream flow right, the
appropriate length of the instream flow reach, the impact of the change of water rights upon retum flow
patterns, especially as they may affect seasona110w flows, the need for augmentation storage, and other
related matters. The CWCB must still protect Colorado's nine interstate compacts. This bill does not
relieve the CWCB of any statutory responsibility in this area. The water court change proceeding
should ensure that there is no injury to existing holders of water rights, while the Board may consider
the impact of such a change to an instream flow use upon future water development opportunities. The
person or entity making the donation will, in most instances, be the one responsible for costs associated
with adjudicating the change. It is understood that only the consumptive use portion of the water right
will be changed to an instream flow use.

It is clear in the bill language that an entity with the power of condenmation cannot use that authority so
as to acquire a water right for donation to the Board. Further, the Board is authorized to use available
funds to acquire such rights, with the expressly noted exception of the Construction Fund. By
prohibiting the use ofthe Construction Fund for water right acquisitions, the legislation expressly
recognizes the statutory purpose for which that fund is reserved. It is anticipated that the Board will
exercise its spending authority in a judicious manner and refrain from using funds that may become
available, such as federal government grants, in a manner detrimental to other consumptive use water
interests within the state.

Colorado Water Conservation Board
Flood Protection. Water Supply Planning and Financing. Stream and Lake Protection
Water Supply Protection. Conservation and Drought Planning

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