Sometimes the best way to preserve and protect rivers, streams and trout is by working at the Colorado General Assembly. A single piece of legislation - or even a bad amendment - can undo years of on-the-ground conservation work. CTU's Jen Boulton works full-time during legislative sessions as an advocate for trout and as an educational resource for lawmakers, many of whom benefit from Jen's comprehensive knowledge of water law, stream biology and environmental regulations.

It's true: Lawmakers listen to their constituents!

LEGISLATIVE UPDATE

Jen Boulton

March 11

TOP PRIORITIES

*SB19 VALUATION OF HYDROPOWER FACILITIES

(Schwartz, Fischer)      Position: Support with House amendment             Status: House Floor

CALLS STILL NEEDED TO MEMBERS OF THE HOUSE – ASKING THEM TO SUPPORT THE AMENDMENT TO ENSURE THAT LARGE NEW FACILITIES WHICH INCREASE DAMAGE TO OUR RIVERS ARE NOT CALLED “LOW IMPACT”

As introduced, SB19 was not a CTU priority. It was merely a reasonably benign change in tax policy surrounding how hydro 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 have continued to work with both the house and senate sponsors to correct the problems with the current language. As a result, we now have an amendment to fix the problem. We still need calls to all members of the House of Representatives asking them to support the amendment to correct the definition

*HB1051 DATA COLLECTION

(Pommer, Whitehead)             Position: Support         Status: House Ag

As introduced, HB1051 requires water providers over a threshold size to provide additional information to the CWCB 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. Plans must also include the population served by the water provider, and the amount of water used by various segments of that population (residential and nonresidential).

Many water utilities have raised numerous objections to the provisions of the bill. Most of the objections center on claims that annual reporting will require too much additional time, or that data is not collected in formats suggested by the bill, and will, in either case, be cost prohibitive. Other objections include uncertainty as to the ultimate use of the new data. We, along with other members of the environmental community, are working on amendments to alleviate (or at least address) 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.

*HB1292 TAKINGS                                                                                       

(Murray, Harvey)          Position: Watch            Status: House Floor

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. So long as there are NO changes to the bill, we do not oppose, but this bill could easily become a huge problem.

*WATER SMART HOMES

(Fischer, Johnston)      Position: Recommend Support                        Status: House T&E

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

 *HB1361 HABITAT STAMP

(Sonnenberg)  Position: Discussion Item        Status: House State Affairs

HB1361 was just introduced. Analysis is under way, and we will discuss the bill tonight.

LOWER PRIORITY (BUT STILL IMPORTANT) BILLS

SB98 REALLOCATE LOTTERY MONEY  

(Tochtrop, Sonnenberg)          Position: Oppose                      Status: House Ag

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. It remains a terrible bill. In its current form, the bill contains a long legislative declaration which laments the loss of funding for noxious weed control, mentions the constitutional amendment creating GOCO, then proceeds to extol the virtues of soil conservation districts, and finally allows 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.

HB1348 URANIUM PROCESSORS CLEANUP                                               

(McFadyen, Kester)                  Position: Support         Status: House T&E

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: House Ag

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: House Floor

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.

HB1060 PENALTY FOR FAILURE TO WITHHOLD SEVERANCE TAX

(Kagan, Steadman)      Position: Support         Status: House Approp

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: Awaiting Governor’s Signature

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 have 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.

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.

OTHER BILLS OF POTENTIAL INTEREST

HB1086 LIMITED LIABILITY           

(Curry, Hodge)             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: Not involved – NO POSITION            Status: Senate Judiciary

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.

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.