Colorado Water Conservation Board Water Partnerships Instream Flow Program Rulemaking Aquatic Invasi

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Colorado Water Conservation Board- Water
Partnerships - Instream Flow Program
Rulemaking- Aquatic Invasive Species

• Jennifer L. Gimbel, Director
• Colorado Bar Association
• Lunchtime CLE, September 11, 2008

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Mission Statement

• To Conserve,
• Develop,
• Protect, and
• Manage
• Colorados Water
• for Present and Future Generations

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Water Management Partnership Projects (Policy 18)

• Are the States water supply needs being met?
• What can CWCB do to assure efficient and
  effective water use, as well as maximum use of
  the States compact entitlements?
  
• Should CWCB do more than just encourage multi-use
  projects?

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• Are there funds available to the State to
  participate in a multi-use project? Severance
  Tax/Construction Fund?
  
• Should the State consider contributing to a
  portion of a project to support the public use
  purposes of the project?
  
• What would be considered public purposes?

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• Mechanics of Water Management Partnership
  Projects
  
• CWCB may set aside up to 20 of annual revenues
  from Severance Tax Perpetual Base Account, not to
  exceed 20 million.
  
• CWCB contributes a non-reimbursable amount to the
  project in return for a portion of project
  water.
  

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• CWCB water used for state interests compact
  deliveries, drought mitigation, instream flow,
  threatened and endangered species, river
  restorations, recreation, or other
  non-consumptive purposes.
• Projects should promote a combination of
  components that meet water demands, while
  minimizing environmental, social and economic
  impacts.
• Unresolved issue regarding trans-basin or
  trans-mountain diversion
  

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• Implementation of the policy may require
  additional statutory authority.
  
• CWCB will establish detailed criteria and
  guidelines before implementing policy.
  
• Project approvals via the CWCB in November and
  legislative authorization in the annual Water
  Projects Bill.
  

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Elkhead Reservoir
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• Other Possibilities
• Ovid Reservoir (South Platte Compact)
• Long Hollow Reservoir (La Plata Compact)
• Rio Grande Reservoir (Rio Grande Compact)
• Restricted Reservoir Rehabilitations
• Dredging Projects

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Rio Grande Reservoir
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• ISF Program Rulemaking
• CWCB revising ISF Rules
• To implement legislation passed in 2008,
• To set out Board policy on injury with
  mitigation, and
  
• To clarify Board policy on de minimis impacts

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2008 Legislation

• HB 1346 (Projects Bill) 1M for water
  acquisitions for ISF use

• SB 168 (Species Conservation Trust Fund Bill)
  500K for water acquisitions to protect habitat
  of T E species
  
• HB1280 protects water rights owners who loan or
  lease water long-term to CWCB for ISF use
  

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Process

• Public Meetings
• Board Meetings
• Rule-making hearing in January 2009
• Adopting criteria and guidelines for spending
  funds on water acquisitions (Financial Policy
  19)
  

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• Policy 19 and Rule 6 Amendments
• Factors that CWCB will consider when evaluating
  proposed leases or loans of water rights
  
• Extent to which leased / loaned water will
  benefit the natural environment to a reasonable
  degree
  
• Provide flows to meet decreed ISF amount in below
  average years?
  
• Use to improve the natural environment to a
  reasonable degree?
  
• Base upon biological analysis from CDOW

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• Policy 19 and Rule 6 Amendments
• Factors that CWCB will consider when evaluating
  proposed leases or loans of water rights
  
• If equivalent amount of water available for
  acquisition on same stream reach by purchase or
  donation, CWCB shall give preference to donation
  or a reasonable acquisition by purchase
• Obtain confirmation from Division Engineer that
  proposal is administrable
  

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• Policy 19 and Rule 6 Amendments
• Factors that CWCB will consider when evaluating
  proposed leases or loans of water rights
  
• historical diversion record(s),
• the beneficial use of the subject water right,
• the location of where return flows have
  historically returned to the stream,
  
• the locations of other water users on the subject
  reach of stream, and
  
• the reason(s) the water is available for lease or
  loan
  

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• Policy 19 and Rule 6 Amendments
• Factors that CWCB will consider when evaluating
  proposed leases or loans of water rights
  
• the effect of the proposed acquisition on any
  relevant interstate compact issue, including
  whether the acquisition
  
• would assist in meeting compact obligations or
• result in the overdelivery of compact
  obligations.
  

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• Rule 6 Amendments
• All lease/loan agreements will require CWCB to
• maintain records of how much water the Board uses
  under the agreement each year it is in effect
  and
  
• install any measuring device(s) deemed necessary
  by Division Engineer to
  
• administer the lease or loan of water, and
• measure and record how much water flows out of
  the reach after use by the Board under the
  agreement.
  

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• Rule 6 Amendments
• All acquisition agreements shall provide that the
  Board or the seller, lessor, lender or donor of
  the water may bring about beneficial use of the
  HCU of the acquired water right downstream of the
  ISF reach as fully consumable reusable water.
• The bringing about of beneficial use of the HCU
  of the water may be achieved by direct use, sale,
  lease, loan or other contractual arrangement.
  

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• Rule 6 Amendments
• CWCB shall apply to water court to obtain a
  decreed right to use water for ISF purposes under
  all agreements for acquisitions of water,
  including leases and loans of water.
• CWCB shall request the Water Court to
• quantify the historical consumptive use and
  return flows of the acquired water right and
  
• include a term and condition providing that CWCB
  or the seller, lessor, lender, or donor of the
  water may bring about the beneficial use of the
  HCU of the changed water right downstream of the
  ISF reach as fully consumable reusable water, as
  long as NO INJURY to other water rights.

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• Rule 6 Amendments
• For leases and loans of water, the Board shall
  request the Water Court to
  
• Determine method by which HCU should be
  quantified and credited during the term of the
  lease agreement
  
• Method shall recognize the actual amount of
  consumptive use available under the leased water
  right and 
  
• shall not result in a reduction of the historical
  consumptive use of that water right during the
  term of the lease,
  
• but must be based upon the actual amount of water
  available under said rights each year.
  

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• Issues related to Policy 19
• Amount paid for purchase or lease of water for
  ISF use
  
• Looking at various ways to appraise water rights
• Factors for calculating lease price based on
  owners use of leased water right after term of
  lease
  

Water Appraisals R US
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• Issues related to ISF Rule 6
• Sufficiency of public notice of pending water
  acquisitions
  
• Updating ISF Subscription Mailing List
• Will send notice to SSP Notification List for
  relevant water division
  

• Use of historical CU amount of changed water
  right downstream of ISF reach
  
• Researching water court approval requirements for
  such uses
  

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• Amendments to ISF Rule 8e
• De Minimis Rule
• CWCB will not accept injury to ISFs even if it
  did not object to water right filing pursuant to
  Rule 8.
  
• If CWCB calls for ISF water right, it will rely
  upon Division Engineers enforcement discretion.
  
  
• Division Engineer may determine that curtailing a
  diversion will not provide water to the calling
  ISF (futile call)
  

Enforcement Discretion
DE

• CWCB will notify applicants that water right
  could be administered by DE as part of enforcing
  ISF call even though no SOP filed by CWCB
  

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• Issues related to Rule 8e
• Effect, if any, of amended rule on existing
  decrees that CWCB did not oppose because of a de
  minimis impact
  
• None because DWR administers water rights in
  priority unless decree specifically provides
  otherwise
  
• Effect, if any, of amended rule on future water
  development in places where on-site augmentation
  not feasible
  
• Same as above

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• Issues related to Rule 8e
• Whether placing a call for 99 of an ISF water
  right would address water user concerns
  
• DWR still would administer junior water rights in
  priority
  
• De minimis water right still could be curtailed
  
  
• Question as to whether CWCB could place such a
  call
  

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• CWCB revising Rule 8i(3)
• Injury with Mitigation
• Formal adoption of existing policy guidance memo
• Notifies water users of
• information required to process an IWM proposal
• factors that the CWCB considers when evaluating
  an IWM proposal
  
• (e.g. extent of injury, benefits of mitigation,
  feasibility of alternatives)

Heres what you need to do
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• Aquatic Invasive Species
• Zebra Mussel Update
• Zebra Mussels discovered in Lake Pueblo in
  January 2007.
  
• Discovery follows years of field sampling by CDOW
  and State Parks across Colorado.
  
• Infestation caught early

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• Primary dispersal of mussels is through human
  activities -- mussels hitch rides on
  watercraft 
  
• Attachment to hard surfaces affects canals,
  aqueducts, water intakes and dams. Massive
  colonies block water intakes affecting municipal
  and agricultural water use and power plant
  operation

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• Congressional researchers estimated zebra mussels
  cost the power industry 3.1 billion in the
  1993-1999 and other industries, businesses, and
  communities more than 5 billion

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Infrastructure Impacts
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• Mussels are not a threat to human health
  biologists are concerned about ecological shifts
  in the lakes.
  
• DNR adopted Formal Rapid Response Plan and
  accompanying emergency regulations allowing State
  Parks, CDOW and law enforcement to inspect and
  quarantine boats.
• Principal combat is through boat inspection, boat
  washing and education at all state parks water
  users taking similar actions and have closed
  facilities to boating

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• Addressing the infestation of mussels in West
  high priority for Bureau of Reclamation
  
• Army Corps of Engineers also engaged.
• Water users need to analyze impacts to operations
  and identify how to monitor, prevent and apply
  treatment without water supply interruptions.
  
• Drawdown, chemical treatment and removal by
  divers offer little chance of success options
  not feasible in many water bodies.
  

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• Other treatment options, including barriers,
  biobullets, drawdown or biocontrols may be more
  feasible in future but, they are not
  recommended at this time.
• Statewide education process to affect boater
  behavior and recreational boating is critical
  
• Stop Aquatic Hitchhikers! campaign

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• Quagga mussels reportedly discovered in Lake
  Granby -- researchers disagree about the
  significance because of the lakes altitude and
  temperature.
• Discovery at Lake Granby raises need for Forest
  Service involvement and action.
  

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• Updated PowerPoint presentation by State Parks
  with more information posted on CWCB website
  www.cwcb.state.co.us
  
• Parks and CDOW presentation at September CWCB
  meeting
  

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Questions? Comments?