Legislation

2010 FINAL LEGISLATIVE REPORT

As one of very few conservation groups with a regular lobbyist working every day at the Capitol, CTU has built a strong presence with the legislature and is helping to convert that presence into conservation results. In the 2010 session, our top priorities were to promote “low impact” approaches to hydropower, to prevent harmful changes to the Division of Wildlife Habitat Stamp program, and to promote water conservation legislation. CTU Lobbyist Jen Boulton offers the following end-of-session recap on the key bills addressing these top priorities:

TOP PRIORITIES

*HB1361 HABITAT STAMP

(Sonnenberg) Position: Oppose Status: Dead

HB1361 is a bill that would further constrain the Colorado Division of Wildlife in being able to make land purchases ("fee title acquisition") using Habitat Stamp funds. It would unreasonably limit the Division from being able to use fee title purchases to protect habitat and provide access - purchases like those in the past that secured the Dream Stream as a public fishery. Fortunately, we were able to kill this bill as it failed to get the votes needed to pass out of the House State Affairs committee.

HB1361 was one of the most divisive bills in recent memory. The sportsmen’s community was divided, and the discussions surrounding the bill were bitter and acrimonious. After nearly five hours of debate, the bill died on a tie vote. We owe a huge debt of thanks to those who voted against HB1361: Reps. Hullinghorst, McCann, Miklosi, Labuda, and Todd.

*SB19 VALUATION OF HYDROPOWER FACILITIES

(Schwartz, Fischer) Position: Support as amended Status: Passed

As introduced, SB19 was not a CTU priority. It was merely a reasonably benign change in tax policy surrounding how hydroelectric plants are evaluated for property tax purposes. After numerous discussions with the sponsors however, we came to agreement on the concept of creating a low impact standard. Since the current fiscal crisis precludes creation of a true low impact standard, due to the costs associated with necessary agency reviews, we agreed to a first step which would encourage development of new hydro as an incidental use of water already being moved for other purposes. Unfortunately, a few senators wanted to encourage any large new hydro, and a critical piece of the definition to ensure that new hydro was only produced as an incidental benefit, was omitted. We worked with both the House and Senate sponsors to correct the problems; an amendment to fix the problem was adopted on the House floor, and the bill was passed with our amendment.

*HB1051 DATA COLLECTION

(Pommer, Whitehead) Position: Support Status: Passed

As introduced, HB1051 requires water providers over a threshold size to provide additional information to the Colorado Water Conservation Board as part of their water conservation plans. In particular, providers must report annually, and must detail the amount of water saved through implementation of their plans. Additionally, the bill requires that water conservation plans include consideration of specific efficiency devices such as high efficiency toilets and low flow shower fixtures. This bill will help ensure broader disclosure of what larger water providers are doing for conservation – and how effective their efforts are proving.

Many water utilities raised numerous objections to the provisions of the bill. Most of the objections centered on claims that annual reporting would require too much additional time, or that data was not collected in formats suggested by the bill, and would, in either case, be cost prohibitive. Other objections included uncertainty as to the ultimate use of the new data. We, along with other members of the conservation community, worked on an amendment to alleviate the providers’ concerns.

*HB1159 BASIN OF ORIGIN PROTECTION

(Pace, Gibbs) Position: Support Status: Dead

HB1159 bill required that applicants seeking to move water from one water division to another needed to enter into mitigation agreements with the water conservancy or conservation districts in the area from which the water was to be moved. Mitigation plans had to at least consider economic and ecologic consequences resulting from the movement of the water.

If the parties could not reach an agreement for mitigation, then the water court was required to include terms and conditions in the decree to “ensure that present and future beneficial uses are not increased in cost” for the residents of the sending area.

We were able to pass the bill out of committee over the strenuous objections of most water providers in the state. Unfortunately the bill died on second reading on the House floor..

*HB 1358 WATER SMART HOMES

(Fischer, Johnston) Position: Support Status: Passed

The bill requires every person that builds new homes to offer a number of water-smart options including: installation of water-efficient toilets, lavatory faucets, and showerheads; energy star rated dishwashers or clothes washers and xeriscaping. Much like last year’s bill for renewable energy improvements on new homes, this will help give new homebuyers a greater opportunity to reduce their “water footprint” by building in water-smart measures up front.

*HB1292 TAKINGS

(Murray, Harvey) Position: Watch Status: Dead

HB1292 amends the only takings bill we ever lost. The Regulatory Impairment of Property Rights Act (RIPRA) requires compensation by local governments for site specific exactions, as conditions of approval, that do not meet the Nollan and Dolan standards of essential nexus and rough proportionality; unless the conditions are legislatively adopted. As introduced, HB1292 clarifies that if conditions are legislatively adopted, they do not have to meet Nollan and Dolan. Because there were NO changes to the bill, we did not oppose, but this bill could have easily become a huge problem.

Just before the Senate hearing, the developers recognized the impact this bill might have, and asked for some amendments. As we feared, the amendments would have created significant problems. The sponsor deferred to Douglas County, which also opposed changing the bill, and opted to kill the bill.

*HB1328 RESIDENTIAL FINANCING OF RENEWABLE ENERGY UPGRADES

(Miklosi, Schwartz) Position: Fix amendment Status: Passed

HB1328 is a perfect example of why we must watch so many bills so closely. HB1328 creates a noncontiguous special district so that individual homeowners throughout the state can join together to access the bond market for installation of renewable energy systems and energy efficiency upgrades. The bill clearly doesn’t have much of a tie to our mission statement. At least, it didn’t until the Senate decided that hydro would be a good addition to the bill.

After a morning of frantic activity, and numerous conversations with the sponsor, and other groups involved with the bill, we were able to limit the addition of hydro. As amended, the bill includes low impact hydro (fortunately we already were successful in creating a definition – see SB19) located behind the meter as an acceptable technology for the bonding permitted by the rest of the bill.

LOWER PRIORITY (BUT STILL IMPORTANT) BILLS

SB98 REALLOCATE LOTTERY MONEY

(Tochtrop, Sonnenberg) Position: Neutral as amended Status: Passed

As introduced, SB98 removed $7.5 million from the local government share of lottery revenue, and transferred it to the Department of Agriculture. The Department of Ag was then to redistribute $2.5 million back to local entities for noxious weed removal, while the other $5 million was used to fund conservation districts within the department of Ag. Clearly, funding soil conservation districts was not the intended purpose of lottery proceeds.

SB98 was completely rewritten in Senate Ag and contained a long legislative declaration which lamented the loss of funding for noxious weed control, mentioned the constitutional amendment creating GOCO, then extolled the virtues of soil conservation districts, and finally allowed local governments to use their share of lottery money to contract with soil conservation districts and weed management programs to accomplish the intended goals of the soil conservation district act.

We are sympathetic to soil districts, and the hardships they face in this climate. The fact remains, however, that the people of Colorado have voted three times to create lottery as a dedicated funding source for parks, recreation and open space. Water delivery, range protection, energy conservation and small acreage management are NOT, and were NEVER intended to be valid uses of lottery money.

After a marathon hearing in the House Ag committee, we were able to convince the sponsor to work on language to address the problems. A million thanks to Rep. Hullinghorst for the inordinate amount of time she spent working with us and with the sponsor to craft an amendment that fixed the problems. As a result, the House removed the portion of the declaration detailing how the money should be spent, and added a provision in the body of the bill requiring all expenditures from the Conservation Trust Fund to be compliant with amendment 27 of the Colorado Constitution.

HB1348 URANIUM PROCESSORS CLEANUP

(McFadyen, Kester) Position: Support Status: Passed

HB1348 requires that uranium processors demonstrate compliance with environmental laws before receiving upgrades to their permits. Processors must also provide reports to those whose wells are within one mile of contaminated groundwater. They must also report to the legislature regarding progress of cleanup.

SB25 EXTEND FUNDING FOR WATER EFFICIENCY GRANT PROGRAM

(Whitehead, Baumgardner) Position: Support Status: Passed

SB25 extends the water efficiency grant program until 2020. It also extends the current funding mechanisms until 2012, at which time the funding shifts to the operational account from severance tax.

SB27 FINES FOR ILLEGAL DIVERSION OF SURFACE WATER

(Sandoval, Roberts) Position: Support Status: Passed

SB27 creates a fine of $500 per day for illegal diversions of surface water. This fine currently exists for illegal diversion of groundwater, and the bill merely imposes the same sanctions for surface water violations.

SB67 EXEMPT SCHOOL WELLS FROM PRIOR APPROPRIATION

(Hodge) Position: Oppose Status: Dead

SB67 declared that irrigation wells producing less than 15 gallons per minute that were owned by small school districts or schools within those districts were exempt from the prior appropriation system. While there were likely not many wells that met the criteria in the bill, we were concerned by the fact that each time a category of water use is allowed to bypass water law the pressures on remaining water supplies are increased.

SB215 NEW LOTTERY GAMES

(Romer, May) Position: Oppose Status: Dead

SB215 was insidious. First, the bill directed the lottery commission to create new lottery games which would provide sufficient revenue for the spillover from the GOCO trust fund to be $100 million more than currently exists. The new spillover would have been directed to college scholarships. This provision was not problematic, as the spillover can already be directed as the legislature chooses.

The problems arose with the subsequent provisions of the bill. There were two ways around the creation of new games. Either the State could sell an asset valued at $500 million or more, or the State could essentially borrow against the future lottery spillover. The crux of the problem is that the obligations of the State under either of the latter scenarios were declared to be expenses of the lottery division. According to amendment XXVII, expenses of the division are paid BEFORE distribution in the 50-40-10 split. In effect, the bill required borrowing by the lottery commission to fund college scholarships, and then pledged the use of all lottery revenues to repay the loans.

HB1060 PENALTY FOR FAILURE TO WITHHOLD SEVERANCE TAX

(Kagan, Steadman) Position: Support Status: Passed

Under current law, a producer who disburses funds to an interest owner, must generally withhold 1% of the gross income and remit it to the Department of Revenue. HB1060 creates a penalty (10% of the amount owed, plus interest) for failure to make such payment. The bill also creates a penalty for failure to file annual reports of payments made.

HB1001 RENEWABLE ENERGY STANDARDS

(Tyler, Schwartz) Position: Neutral Status: Passed

HB1001 was the administration’s number one priority for the 2010 session. It required utilities to produce 30% of their energy from renewable sources by 2020. It also required a graduated percentage of that energy to be from distributive generation technologies (individual home systems).

Unfortunately, there was no change to the size based hydro standard. We suggested for a number of years that an impact standard is a more appropriate measure for hydropower projects, and will continue to work to change the perception of hydropower in the legislature.

HB1003 SEVERANCE TAX FOR RAINY DAY FUND

(Curry, Penry) Position: Oppose Status: Dead

HCR1003 skimmed the first $25 million from the severance tax revenues, prior to distribution to DNR and DOLA, and deposited it in a state rainy day fund accessible by a 60% vote of the legislature. HCR1003 would have had a dramatic impact on the funding available to DNR for a number of programs, including the native species trust fund, mine safety and reclamation, and wildlife protection from oil/ gas effects.

HB1006 MAKE DIVISION OF WATER RESOURCES A TIER I ENTITY

(Curry, Brophy) Position: FYI Status: Dead

As introduced, HB1006 funded the division of water resources with up to 5% of the operational account of severance tax as a tier 1 entity. The bill removed the 5% from the division of wildlife in order to keep the tier 2 programs in the same fiscal shape they previously had.

In committee, Rep Curry amended the bill to allow DOW to retain its authority to receive severance tax money, but to transfer a portion of the funding received for the next two years to the division of water resources. The amendment raised consternation among several legislators for a variety of political reasons. As a result, the bill died, and Rep. Curry pledged to seek a late bill if necessary to address the funding situation for the division of water resources.

HCR 1007 LOTTERY FOR EDUCATION ENTITY

(Sonnenberg, Williams) Position: Oppose Status: Dead

HCR1007 was a proposed constitutional change that would have diverted all net lottery proceeds to the state education fund whenever the legislature declared a fiscal crisis. Such a declaration would have requires a 60% vote. Clearly, however, HCR1007 would have put us in the position of eternally defending lottery from raids by the legislature. It was specifically to avoid decisions between parks and education that the people of Colorado chose to create lottery in the first place. Fortunately, the bill died on a party line vote. We are indebted to those who voted against the resolution: Reps. Benefield, Middleton, Peniston, Schafer, Todd, Solano, and Merrifield.

OTHER BILLS OF POTENTIAL INTEREST

HB1086 LIMITED LIABILITY

(Curry, Hodge) Position: FYI Status: Dead

HB1086 declared that water rights structures, such as ditches, flumes, headgates etc. were not attractive nuisances. The bill also expanded the list of recreational activities for which a landowner was not liable to participants for injury that occurs while the participant is on the landowners’ property, unless the injury was willfully caused by the landowner.

HB1188 RIGHT TO FLOAT

(Curry, Hodge) Position: Aggressively uninvolved- NO POSITION Status: Dead

Colorado Trout Unlimited has no position on HB1188. It is included here solely for informational purposes. As introduced, the bill is summarized by legislative drafting as follows:

Current law is unclear regarding the scope of the existing right of navigation.

Section 1 of the bill recognizes that the state's adoption of the common law of England established the right of navigation.

Section 2

Clarifies that a guide employed by a licensed river outfitter and the guide's passengers may float on waterways that have historically been used for commercial float tripswithout committing civil or criminal trespass if they gain access to the waterway from public land or from private land with consent and make only incidental contact with the beds and banks of the waterway while floating and portaging;
Limits a landowner's liability to such persons to damages willfully or deliberately caused by the landowner unless the person is an invitee or licensee of the landowner;
Specifies that such a person who damages private property is liable for the damage; and
Specifies that nothing in the law regulating river outfitters
Affects water rights.

Section 3 makes a conforming and clarifying amendment to the criminal trespass statute.

HB1006 MAKE DIVISION OF WATER RESOURCES A TIER 1 ENTITY

(Curry, Brophy) Position: FYI Status: Dead

If you have additional questions, please contact Jen. If you’d like to be included on the legislative updates list, email Jen Boulton at jenboulton@msn.com or ctuadmin@tu.org.