Bill Tracker

Except in connection with individual septic systems, current law is unclear regarding whether, and under what conditions, graywater may be used. Section 1 of the bill declares the importance of water conservation to the economy of Colorado and the well-being of its citizens. Section 2 defines "graywater" as wastewater from sources other than toilets, urinals, kitchen sinks, nonlaundry utility sinks, and dishwashers collected within a residential, commercial, or industrial building that meets certain standards established by the water quality control commission. Section 3 authorizes the commission to adopt a control regulation establishing use standards and specifies that: Graywater may be applied only to uses that are allowed by the water sources' well permits and water rights; and, if so used, the use of the graywater is deemed to not cause injury.

Graywater can be used only if the commission has adopted a control regulation and a local government authorizes the use. The local government has exclusive enforcement authority regarding compliance with the commission's control regulation. Section 5 allows counties to authorize graywater use, and section 6 allows municipalities to authorize graywater use. Section 4 repeals an obsolete provision authorizing local boards of health to adopt rules regarding graywater use with individual septic systems.

Water Resources Review Committee. If a person loses a mutual ditch share certificate, the person may file with the mutual ditch company a request for reissuance of the certificate, but current law requires the company to wait for 3 years before issuing a replacement certificate. The bill eliminates the 3-year period and specifies that a person who is named in the books of the company as a lienholder on the lost certificate is also entitled to file a request for reissuance of a lost certificate.

Water Resources Review Committee. Some mining operations construct impermeable areas that capture precipitation and eliminate preexisting natural evapotranspiration. Current law requires that the portion of the captured precipitation that historically reached the stream must be replaced to prevent injury to senior water rights. However, capturing the amount of water that was lost through plant transpiration or evaporation does not increase the actual stream depletions caused by the mining operation because the evapotranspiration did not historically reach the stream. Current law does not give the mine operator any credit for this reduction in evapotranspiration when calculating the obligation to replace stream depletions unless it is a sand and gravel mine. The bill specifies that for all permitted mining operations, there will be no requirement to replace the amount of historic natural depletion to the waters of the state that was caused by the preexisting natural evapotranspiration on the surface of an area that will be, or that has been, eliminated or made impermeable.

Water Resources Review Committee. Current law requires a drinking water treatment facility that stores, treats, or processes solid wastes originating at the facility to get a certificate of designation from the local municipality or board of county commissioners. Such facilities are regulated by both the solid and hazardous waste commission and the water quality control commission.

The bill exempts these facilities from the requirement to get a certificate of designation, regardless of when the solid wastes were handled, and allows them to dispose of their own solid wastes on the facility's property in compliance with the rules of the solid and hazardous waste commission for waste impoundments and solid wastes disposal.

In 2009, the general assembly increased the maximum annual fee that the water quality control agency in the division of administration of the department of public health and environment may impose upon concentrated animal feeding operations and housed commercial swine feeding operations dischargers under the "Colorado Water Quality Control Act" until July 1, 2012. The bill maintains the current fee structure until July 1, 2015, in order to continue the environmental agriculture program.

The bill allows the board of directors of the grand valley drainage district to adopt a resolution exempting the district and the district's maintenance efforts from excavation requirements.

Current law allows for the disposal of unwanted medication in landfills and state waters. The bill creates a locally run medication take-back program to divert this waste from water disposal and to minimize the inadvertent or inappropriate use of medications. The division of administration in the department of public health and environment will use gifts, grants, and donations to make grants to local public or private entities that wish to offer a medication take-back program. The collected medication must be disposed of safely. Immunity is provided for the sponsors of the local program. The solid and hazardous waste commission may promulgate rules for the program, including for public education. Effective January 1, 2017, the disposal of medication in water is prohibited. The general assembly's legislative service agencies will conduct a post-enactment review of the bill by July 1, 2017.

The bill modernizes and simplifies the laws related to individual sewage treatment systems. Section 1 of the bill:

• Replaces the terms "individual sewage disposal system" (or"ISDS") with "on-site wastewater treatment system" (or "OWTS") and updates other OWTS-related terms and definitions;
• Eliminates references to disposal of sewage to moreaccurately convey that sewage is treated;
• Explicitly authorizes performance-based approaches to theregulation of OWTSs;
• Requires the division of administration in the departmentof public health and environment (department) to periodically advise the water quality control commission (commission) in the department regarding whether the commission should consider adopting new rules to reflect scientific advances in OWTSs;
• Removes specific topics and parameters for which thecommission and local boards of health are required to promulgate rules, thus allowing those entities greater regulatory flexibility to regulate OWTSs;
• Reorganizes existing law for increased clarity, includingrelocating provisions pertaining to the issuance of variances from OWTS rules;
• Withdraws from local boards of health, and places withinthe purview of the commission, the authority to specify by rule mandatory tests that must be performed on OWTSs and allows local boards of health to adopt rules requiring additional studies;
• Strikes references to a distinct "emergency use permit" andinstead incorporates the ability of a local public health agency to allow use of a malfunctioning OWTS under the terms of, and concurrent with, a repair permit;
• Condenses language pertaining to fees that a local board ofhealth may collect for OWTS-related services, and allows the amount of such fees to be sufficient to offset the indirect costs (in addition to direct costs) incurred; and
• Repeals specific provisions relating to, while reaffirming,the authority of a local board of health to prohibit permits for an OWTS when the OWTS will constitute a hazard to public health or water quality.

Sections 2 through 8 contain conforming amendments.

The bill establishes a nutrients scientific advisory board, appointed by leadership of the general assembly, to review proposed numeric water quality nutrient standards regulating nitrogen and phosphorus to determine how the proposed rules comply with an executive order; reflect active stakeholder participation; fully consider a cost-benefit study; are structured to avoid unnecessary regulation and minimize the fiscal impact to state agencies and local governments; and are designed to address basin-specific conditions. The advisory board will deliver a report to the water quality control commission and the general assembly by February 1, 2013. The commission cannot adopt the proposed rule until the rule is approved by the general assembly acting by bill.

Beginning in 2013, listing contracts, contracts of sale, and sellers' property disclosures for real estate must include a notice regarding whether the mineral estate has been severed from the surface estate and a surface owner's right of first refusal to purchase the mineral estate when the taxes on the mineral estate have not been paid. The seller must provide to the buyer a copy of each instrument that severed the mineral estate, the name and contact information of the owner of the mineral estate, and the name and contact information of any known current lessees of the mineral estate, if that information is available. The seller must also indicate whether mineral exploration or development on the real property is or will be using water that would otherwise be available to the buyer as an incident of ownership of the real property.

On or after July 1, 2014, an oil and gas operator may not use, store, or dispose of hydraulic fracturing fluids or flow-back from a hydraulic fracturing treatment in an open pit and must use a closed-loop system for hydraulic fracturing treatments. However, the oil and gas conservation commission may approve the use of open pits where the commission determines there is no risk to occupied structures or water sources, and operators can use open pits if the fluids are clean enough to discharge directly into state waters without a permit.

The bill authorizes a study of the interaction between the South Platte alluvial aquifer and surface streams. It also authorizes the state engineer to respond to damaging conditions caused by high groundwater levels in water division 1 in the following manners:

• Approve temporary substitute water supply plans that donot require the replacement of all out-of-priority depletions when deemed necessary to remedy adverse conditions caused by high groundwater levels;
• Permit out-of-priority well pumping without requiringreplacement of depletions;
• Request that the water judge for water division 1 use theretained jurisdiction provisions to reconsider augmentation plan decrees based on information obtained from the authorized study; and
• Withhold approval for new recharge projects untilcompletion of the authorized study.

Water Resources Review Committee. Law that is currently in effect:

• Requires wells that pump from the Dawson aquifer toreplace actual out-of-priority depletions; and
• Specifies that the replacement obligation for all Denverbasin aquifers continues after pumping stops to compensate for depletions.

This law is scheduled to repeal on July 1, 2012.

The new law that will automatically become effective on July 1, 2012, would require:

• Wells that pump from the Dawson aquifer to replace actualstream depletions to the extent necessary to prevent any injurious effect on other water rights based on actual aquifer conditions; and
• Replacement after pumping ceases for all Denver basinaquifers only if required to compensate for injurious depletions.
There is currently no modeling tool available to calculate depletions according to actual aquifer conditions. Accordingly, the bill

postpones the repeal of the current law until July 1, 2015.

Water Resources Review Committee. The bill consolidates several funds administered by the division of water resources into a newly created water resources cash fund. Section 1 of the bill creates the water resources cash fund and consolidates into a single section the laws governing the fund's allowable uses. Section 2 repeals the water data bank cash fund, division of water resources publication cash fund, and division of water resources ground water management cash fund. Section 3 repeals the ground water publication fund, section 4 repeals the gravel pit lakes augmentation fund, and section 5 repeals the well enforcement cash fund. Sections 6 through 11 make conforming amendments.

The bill prohibits the water quality control commission from adopting numeric criteria for a water control standard or control regulation regarding nitrogen or phosphorus.

Under current law, all changes of water rights, including changes in the point of diversion, must be adjudicated. The bill creates a simplified procedure for the adjudication of a simple change in a surface point of diversion, which is defined as a change in the point of diversion from a decreed surface diversion point that is not combined with and does not include any other type of change of water right and for which there is no intervening surface diversion point or inflow from a surface stream or other surface discharge between the new point of diversion and the diversion point from which a change is being made. The new procedure applies to a change of point of diversion that has already been physically accomplished or with respect to a requested future change of point of diversion.

There is a rebuttable presumption that a simple change in a surface point of diversion will not cause an enlargement of the historical use associated with the water rights being changed. The resulting decree must not requantify the water rights for which the point of diversion is being changed. The applicant is not required to prove:

• That the water diverted at the new point of diversion canand will be diverted and put to use within a reasonable period of time;
• Compliance with the anti-speculation doctrine; or
• Future need for the water or other similar requirementsimposed by case law or statute.

The bill enacts the "Water Rights Protection Act", under which the Colorado oil and gas conservation commission (commission) must establish rules for:

• Hydraulic fracturing near radioactive materials and siteslisted on the national priority list pursuant to the federal "superfund" law; and
• The shut-down of hydraulic fracturing operations whenmonitoring equipment detects a pressure drop.
Oil and gas operators must submit water quantity reports showing projected and actual sources and amounts of water needed for hydraulically fracturing a well. Operators must also submit pre- and post-fracturing water quality reports for all active water wells located within .5 mile of oil and gas wells that will be or have been hydraulically

fractured. This information will be posted on the commission's web site.

Operators cannot inject into the ground any chemical compound that would cause cancer.

In addition to existing financial assurances, each operator that engages in a high-risk hydraulic fracturing treatment must take out an environmental bond that would be forfeited if the operator's operations cause any damage to water rights.

Subject to listed affirmative defenses, an operator is presumed to be responsible for the pollution of a water supply that is within .5 mile of a line between the well head and the surface projection of the bottom hole location of the well, if the pollution occurred within 6 months after the completion of the hydraulic fracturing of the well. Hydraulic fracturing would be prohibited within .5 mile of any surface water, including a pond, reservoir, or other natural or artificial impoundment or stream, ditch, or other artificial waterway, unless the operator uses a closed-loop system.

Section 1 of the bill requires air quality permits to be issued within 12 months after receipt of a complete permit application.  Section 2 requires the same of water quality permits.

The bill authorizes the state engineer to reduce, temporarily, augmentation requirements in areas where groundwater levels are at or near historic high levels of groundwater saturation through the creation of 3 pilot projects.

WHEREAS, Colorado is a semi-arid state, and much of our water supply is located far from where it can be beneficially used; and

WHEREAS, Colorado is therefore heavily dependent upon water infrastructure to move water to where it can serve the needs of our agricultural, municipal, and industrial water users; and

WHEREAS, Our constitutional prior appropriation doctrine has always promoted and protected the initiative and economic investments of water users in building the water diversion, storage, and conveyance infrastructure needed to put water to beneficial use; and

WHEREAS, Federal  and state mandates have required the ongoing construction, improvement, and replacement of treatment facilities for drinking water and waste water; and

WHEREAS, The approval process for these different types of water facilities and infrastructure has become increasingly expensive, time-consuming, and uncertain; and

WHEREAS, Colorado has long supported the private sector's and local governments' initiative in building water infrastructure with state financial incentives, primarily in the form of loans from revolving funds but also with grants to local governments; and

WHEREAS, Due to recent difficult economic conditions and consequent state budget shortfalls, the General Assembly has had to make difficult choices in prioritizing its expenditures; and

WHEREAS, Since 2009, the General Assembly has authorized the transfer of almost $422 million into the general fund from sources that would otherwise have been available for water infrastructure, including: $158 million from the perpetual base account of the severance tax trust fund and $10.25 million from the Colorado water conservation board construction fund, all of which would otherwise have been available for raw water infrastructure loans; and $14.95 million from the operational account of the severance tax trust fund, $168.8 million from the local government severance tax fund, $19.1 million from the local government permanent fund, and $46 million from the local government mineral impact fund, significant portions of which would otherwise have been available for water infrastructure loans and grants; and

WHEREAS, From 2007 to 2010, energy impact assistance grants totaled approximately $43.7 million for drinking water projects and $48.1 million for wastewater projects, and in 2011 all such grants were suspended;

WHEREAS, The diversion of such significant sums from their originally intended purposes has had a devastating effect on the maintenance and development of water infrastructure in Colorado; and

WHEREAS, The president and president-elect of the National Conference of State Legislatures sent a letter to congressional leadership that listed infrastructure as the third-highest priority that should be protected during deficit reduction efforts, behind only imposing no new unfunded federal mandates and improving the Medicaid program; and

WHEREAS, The Western States Water Council, an organization created by resolution of the Western Governors' Association, recently noted that the most recent American Society of Civil Engineers Report Card gives the "Nation's drinking and wastewater infrastructure a 'D-' grade, its dams a 'D,' and its levees and inland waterways a 'D-'. The current deplorable grade for our infrastructure impacts our lives and the economy, raising public health and safety issues, as well as the looming specter of future repair, rehabilitation and replacement costs."; and

WHEREAS, Further diversions of revenues to the general fund from water infrastructure will have serious, long-term, adverse effects on Colorado's economic and social well-being; and

WHEREAS, The Water Resources Review Committee has reviewed the issues raised by this joint resolution and strongly urges the General Assembly to adopt it; now, therefore,

Concerning approval of water project revolving fund eligibility lists administered by the colorado water resources and power development authority.