COLORADO WATER PLAN

COLORADO WATER PLAN

 

On May 14, 2013, Colorado Governor John Hickenlooper issued Executive Order D2013-005, directing the Colorado Water Conservation Board to commence work on the Colorado Water Plan.  Governor Hickenlooper’s announcement indicates that Colorado “deserves a plan for its water future use that aligns the state’s many and varied water efforts and streamlines the regulatory processes” and that builds on prior collaborative efforts.

Previous Studies and Planning Efforts.

In 2003, the Colorado legislature commissioned the Colorado Water Conservation Board (“CWCB”) to undertake the Statewide Water Supply Initiative (“SWSI”), an 18-month study to examine existing water supplies in each of Colorado’s water basins, existing and projected demands through the year 2030, and a range of potential options to meet that demand.  The CWCB published a report of its findings in 2004.  Several additional reports have been undertaken by the CWCB as part of the SWSI effort, including the Phase II report in 2007 entitled “Colorado’s Water Supply Future,” which confirmed and updated the CWCB’s analysis of the state’s water supply needs and recommended implementation measures.

In 2006, the Colorado legislature enacted HB-1177, the Water for the 21st Century Act (the “Act”).  The Act created an Interbasin Compact Committee (the “IBCC”), a 27-member committee established to facilitate conversations between water basins and to address statewide water issues.  The Act also created a Basin Roundtable process to facilitate discussions on water supply, demand, and management issues within each of the state’s major river basins.  Each of the nine Basin Roundtables was required to develop a basin-wide water needs assessment describing consumptive water needs, nonconsumptive water needs, available water supplies, and proposed projects or methods to meet the identified water needs and achieve water supply sustainability.

In January of 2011, an update to the Colorado’s Water Supply Future report was prepared for the CWCB, including an analysis of the water supply demands to 2050, an analysis of consumptive and nonconsumptive needs in each basin, an analysis of water availability in the basins, possible water conservation measures and development opportunities for new water supplies, and the costs to implement possible water supply strategies.  Of particular significance is the report’s conclusion that the “gap” between water supplies and anticipated demands could exceed 500,000 acre-feet by 2050.

Each water basin in Colorado has a gap between its water supplies and anticipated 2050 demand.  Accordingly, each Basin Roundtable was tasked with promulgating a Basin Implementation Plan analyzing and proposing implementation of projects to address the gap in that basin.  The Basin Implementation Plans are to describe specific projects and methods to meet consumptive and nonconsumptive municipal, industrial, agricultural, environmental, and recreational water needs.  The plans are also to identify specific implementation strategies that will be needed to fully implement currently planned and new projects, operational agreements, flow protections, or other methods to address the basin gap.  The Basin Roundtables have begun drafting the Basin Implementation Plans.

The Colorado Water Plan.

The Colorado Water Plan (“CWP”) is intended to build on the work of the IBCC and Basin Roundtables and is expected to rely heavily on the Basin Implementation Plans.  One of the main purposes of the CWP is to address the gap between water supplies and anticipated demands identified during the Basin Roundtable process and the SWSI.  Other significant purposes of the CWP identified by Governor Hickenlooper include: assessing the impact of drought conditions; reducing the transfer of water rights from agricultural irrigation to other uses and the consequent dry-up of irrigated land (commonly known as “buy and dry”); researching mechanisms to conjunctively address water quantity and quality issues; and protecting Colorado’s rights under interstate water compacts and equitable apportionment decrees.

Governor Hickenlooper’s Executive Order includes several specific directives to meet these goals, including:

1.  The CWP must incorporate and reflect the following values:

a.  A productive economy that supports vibrant and sustainable cities, viable and productive agriculture, and a robust skiing, recreation, and tourism industry;

b.  Efficient and effective water infrastructure promoting smart land use; and

c.  A strong environment that includes healthy watersheds, rivers and streams, and wildlife.

2.   The CWCB, as the main drafter of the CWP, is to:

 a.  Align state water projects, studies, funding, and other efforts to the greatest extent possible;

b.  Streamline the state’s role in the approval and regulatory processes regarding water projects;

c.  Place an emphasis on expediting permitting processes for projects that stress conservation, innovation, collaboration, and other criteria that promote efficient infrastructure, smart land use, healthy watersheds and smart water conservation practices; and

d.  Assemble ad-hoc panels of Coloradans and inter-agency working groups to develop recommendations regarding specific topics.

 3.  The CWP is to reaffirm the Colorado Constitution’s recognition of priority of appropriation while offering recommendations to the Governor for legislation that will improve coordination, streamline processes, and align state efforts.

The CWCB must submit a draft CWP for review by the Governor’s Office no later than December 10, 2014, and complete the final plan no later than December 10, 2015.  To meet those deadlines, the CWCB has released a draft framework of the CWP and answers to frequently asked questions about the plan.  Among the most important functions of the Plan will be the establishment of criteria against which future water projects and programs will be evaluated in considering the extent to which the state will provide “support.”  Those criteria will certainly influence future decisions about state funding of water projects.  The extent to which they will also be relevant in permit decisions under existing state and federal law, or other policy actions such as the position taken by state agencies in water court proceedings, is an issue that has not yet been determined.

While it is expected that there will be several opportunities for the public to provide input on the CWP process, water users should closely monitor the development of the Basin Implementation Plan in their river basin and participate in both that local planning process and the discussion of relevant elements of the CWP.  The CWCB’s draft guidance document provides useful information on the expected contents of these plans.  The basin plans will, among other things, identify future water supply projects and methods that are needed to meet consumptive and non-consumptive needs in the basin.  The CWCB’s FAQ guidance notes that inclusion of a project or method in a basin plan “is likely a good indicator of a project that will meet the water plan’s criteria, but does not necessarily guarantee that the project will ultimately receive state support,” which “will hinge on whether or not a project meets criteria set forth in Colorado’s Water Plan.” Significantly, “if a currently-contemplated project were not included in the basin’s plan, state support would be unlikely.”  Therefore, water providers and other water users who are contemplating projects or programs are well advised to participate in the development of their local Basin Implementation Plans.