Agenda Item 20. March 13-14. 1986 Board Meeting

STATE OF COLORADO

Department of Natural Resources 721 State Centennial Building 1313 Sherman Street

Denver, Colorado 80203 Phone: (303) 866-3441

MEMORANDUM

TO: Members. CWCB FROM: Bill McDonald

DATE: March 3. 1986

SUBJECT: Agenda Item 20. March 13-14. 1986 Board Meeting--H.B. 1088 Procedures Richard D.Lamm Governor J. William McDonald Director David W. Walker Deputy Director

The Board has had under consideration over the course of several meetings the procedures called for by H.B. 1088

(1985 Session). I recommend that the Board approve the enclosed letter of transmittal and the enclosed procedures.

JWM/gl

Enclosures: as stated

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David W. Robbins, Chairman - James S. Lochhead, Vice Chairman

-1-"(1) Prior to making any such such claim as

authorized in this section, the Secretary shall first find and declare by public notice that the Colorado Water Conservation Board has not, pursuant to Colorado water law, previously sought and obtained such minimum instream flows, or has not sought and obtained sufficient minimum instream flows, so as to protect aquatic life to a reasonable degree.

''(b) Prior to the initiation of any such minimum

instream flow claims, the Secretary shall request, review and

consider minimum instream flow recommendations from the Colorado State Engineer, and the Color~do Divisions of Wildlife and Parks and Outdoor Recreation, and any other appropriate or affected water conservation or policy officials, districts or agencies in the State of Colorado:

Provided,

authorizing the acquisition of water by eminent domain, or to deprive the people of the State of Colorado of the beneficial use of those waters available by law and by interstate and international compacts.

"(c) Any claims by the Secretary for such minimum instrearn flows as authorized in this section shall be adjudicated and assigned a priority within the designated water appropriation forums or agencies, and pursuant to the established water adjudication laws and processes of the State of Colorado, but in no instance shall the priority date be earlier than the date of the Act which designated the wilderness area.

"(d) The provisions of this section shall apply with

respect to any area designated as wilderness in the State of Colorado before, on, or after the date of enactment of this section."

SECTION-BY-SECTION ANALYSIS

STRANG Bill Providing for Minimum Instream Flows in Colorado Wilderness Areas

February 25, 1986

GENERAL: The thrust of Congressman Strang's minimum instream

flow legislation for wilderness areas is-based on the concept set

forth in Colorado water law (SB 97), i.e., a minimum flow of water must be maintained in streams running through wilderness areas in

Colorado. Strang was the House sponsor of SB 97, which created the

policy of the State of Colorado to maintain minimum instream flows in Colorado streams. The bill was adopted by the State Legislature and signed into law in 1973.

Strang's new legislation sets forth a process by which the Federal land managers may make a claim for minimum instream flows in

wilderness streams upon a finding that the Colorado Water Conservation

Board has not done so or not sufficiently so; after considering

minimum instream flow recommendations of various water interests in Colorado, and on an equal footing with all ·other water right claimants in Colorado.

No one wants to dry up streams in Colorado, within or outside of present or future wilderness areas. Congressman Strang believes, as he demonstrated as a Member of the Colorado Legislature in 1973, that establishment of minimum instream flows is crucial.

Thus, the purpose of the legislation proposed by Congressman

Strang is to (1) reverse U.S. District Court Judge John_Kane's

decision of November, 1985, granting special Federal reserved water rights in Colorado wilderness areas; and (2) to set forth as an alternative, the basis and process for the Federal land managers to seek minimum instream flows in streams and lakes in Colorado

wilderness areas, on an equal footing and within the same adjudicatory and priority process as all other entities pursuant to established Colorado water law, for the protection of aquatic life to a reasonable degree.

SECTION I

SECTION I of the legislation amends the -1980 Colorado

Wilderness Act, to reverse Judge Kane's decision regarding the

granting of Federal reserved water rights for wilderness areas. The

Strang language says simply there are no Federal reserved water rights granted or conveyed with the designation of wilderness areas in

Colorado. The languag~ makes this provision applicable to all past, present and future wilderness designations in Colorado.

-2-SECTION II

SECTION II of the legislation amends the 1980 Colorado

Wilderness Act and is a direct acknowledgement of the desire to keep a minimum flow of water in streams and lakes in wilderness areas in Colorado for the protection of aquatic life, to a reasonable degree, and authorizes the Secretaries of Agriculture and Interior to make a claim for such rights, except during periods of drought, within a specified process:

The Process --- The minimum instream flow to be made as provided below, water law; [Sec 113.(a)]

claims are authorized pursuant to Colorado

--- Prior to making any such claim, the Secretary must first determine and declare by publication in the Federal Register and by other means of public notice in the State of Colorado, that the Colorado Water Conservation Board (which is designated under Colorado water law as the agency authorized to claim minimum instream flows in and for Colorado streams) has either not done so or has not done so in sufficient quantities to protect aquatic life to a reasonable degree in one or more Colorado wilderness areas. [Sec 113.(a)(l)] --- Having so found and declared, the Secretary must then consult with the Colorado State Engineer, the Colorado Divisions of Wildlife and Parks and Outdoor Recreation, and any other affected water conservation or policy officials, districts or agencies in the state, as to an appropriate level of minimum stream flow to be claimed for a given area for the purpose of protecting aquatic life to a reasonable degree. The use of the powers of eminent domain (condemnation) is prohibited. [Sec 113.(b)]

--- Having assessed the minimum quantity of instream flow necessary to carry out his authorized duties, the Secretary may enter his claim pursuant to the water adjudication laws and processes established under Colorado water law. The eventual priority of the claim, once granted by the water courts, would be the priority date established within the adjudication proceedings, hut no earlier than the date of the Act that created the wilderness. [Sec. 113. (c)]

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--- The authorization to claim minimum instream flows pertains to all wilderness areas as necessary, regardless of the date of designation. [Sec. 113. (d)]

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Senator Ted Strickland President of the Senate Colorado General Assembly State Capitol

Denver, CO 80203

Representative Carl B. Bledsoe

Speaker of the House of Representatives Colorado General Assembly

State Capitol Denver, CO 80203 Dear Sirs:

Draft

Section 3 of H.B. 1088 (1985 Session) added a new subsection (2) to section 37-60-115, CRS, which new subsection states that:

(2) the Colorado water conservation board shall present to the general assembly, on or before January 1, 1987, procedures that facilitate the identification, evaluation, prioritization, scheduling, and funding of water projects so as to accomplish to the fullest extent possible a unified development of Colorado water resources. (Emphasis

supplied.)

Please find enclosed the subject procedures, which have been developed by the Board over the course of several meetings with opportunity for public input and discussion.

The Board presents these procedures to the General Assembly at this early date in order that you might have an opportunity to review them and give further direction to the Board if so

desired. For example, in several places the procedures require that evaluation criteria be determined and that certain kinds of

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evaluations be performed. Since entire manuals have been or could be written about each of these matters, the Board did not feel that i t was necessary to set forth those ma~ters in the document which we are fowarding to you. However, if further explication in this regard is desired by the General Assembly, the Board would be pleased to respond.

The -Board would also note that section 37-60-115 (2), CRS, does not provide guidance as to the manner in which the solicited procedures are to be employed. Insofar as the Board is

concerned, the procedures which we are providing to you are already employed by the Board in its planning and construction fund programs. Should the General Assembly intend that the procedures which the Board has developed are to apply to all

expenditures of state tax monies for water project development by any agency, then this needs to be addressed by the General

Assemly.

As the agency responsible for the planning and development of the State's water resources, the Board appreciates this

opportunity to respond to a directive of the General Assembly. Please feel free to call upon me if there are any questions about the procedures.

JWM/gl

Enclosure: as stated

cc: Secretary of the Senate

Sincerely,

J. William McDonald Director

Chief Clerk, House of Representatives

Members, Senate Committee on Agriculture, Natural Resources, and Energy

Members, House Committee on Agriculture, Livestock, and Natural Resouces

Governor Richard D. Lamm Senator Noble

Senator Fenlon

Representative Paulson

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Introduction

PROCEDURES FOR WATER RESOURCES PLANNING prepared by the

Colorado Water Conservation Board March. 1986

Draft 3/14/86

This document sets forth the procedures required by section 37-60-115. CRS. which provides that:

(2) the Colorado water conservation board

shall present to the general assembly. on or before January 1. 1987. procedures that facilitate the identification. evaluation. prioritization. scheduling. and funding of water projects so as to accomplish to the fullest extent possible a unified development of Colorado water resources.

Procedures for Project Identification

The first step in project identification is to make

projections of the future water needs to be met. Needs arise

when currently developed water supplies are insufficient to meet anticipated future requirements.

In making such projections. one must first establish

criteria for defining and quantifying future needs. Such

criteria must address design standards for drought protection. annual safe yield requirements. and the per unit (i.e .• per capita. per acre. etc.) use of water both in terms of

diversions as well as consumptive use.

Second. a planning time horizon must be established. This

can include interim or sequential time horizons from short to long range.

In the context of the established criteria and planning

horizon. future needs can then be estimated. These estimates

will be a function either of: (1) demand projections based

upon the willingness of users to pay for the costs of

additional water supplies. or (2) policy objectives for the

development of the state's water resources where the ·attainment

of such objectives can only be achieved by subsidizing the costs of project development.

Once future needs have been projected. the alternative ways

in which they could be met must be identified. The

alternatives which should be analyzed include:

(1) Potential storage reservBirs and the associated

delivery facilities. including enlargements of

-2-existing reservoirs and staged construction of new reservoirs.

(2) Improvements in the management of already developed

water supplies.

(3) Transfers of water from existing to new uses. and

(4) Improvements in the efficiency of existing uses so

that already developed water supplies will "stretch further."

Procedures for Project Evaluation

Once alternatives for meeting future needs are identified.

they must be comparatively evaluated. Such evaluations should

be based upon the following factors.

The first factor is technical feasibility. Technical

feasibility will be a function of hydrologic. engineering. and

geotechnical considerations. Technical feasibility should also

include the evaluation of available water rights and their yield.

Next is consideration of financial feasibility. This will

be based upon the capability of project users and beneficiaries

-3-to pay for project costs. Financial feasibility will vary as a function of the terms of the financing available to implement any given alternative.

Third. consideration should be given to the relative

economic effects of each project alternative. This will entail

the traditional benefit-cost analysis. It 1s important to note

that financial feasibility and economic 11 _{justification}11 _{are two}

different factors. A project can be financially feasible but

economically unjustified (i.e .• have a B/C ratio of less than

1:1) and vice-versa.

Fourth. an analysis of the social impacts not accounted for by the economic evaluation should be undertaken to provide a basis for weighing the relative effects of each alternative on

the affected community and area. This analysis should include

consideration of institutional constraints and the means of alleviating those constraints if so desired.

Finally. environmental impacts are identified to determine both the beneficial and detrimental effects which project

construction and operation would have. Consideration also

needs to be given to the mitigation of adverse impacts and to opportunities for enhancing fish and wildlife resources as a component of a project.

-4-The various alternatives identified in the initial stages

of a project identification are studied at

a

reconnaissance level of detail according to the preceding evaluation factors to provide comparative data for all

alternatives .. The most promising alternatives are then

selected. Before a feasibility study is commenced. however.

criteria and policies should be applied to establish project eligibility for financial assistance with state tax monies. Only if a potential project is likely to be eligible for financial assistance. should it be included in a feasibility study. at which time the evaluation process is reiterated at a

greater level of detail. The result is one or more preferred

alternatives.

Procedures for Prioritization, Scheduling. and Funding

When a number of feasible projects are proposed which meet the criteria for state financial assistance. a process for establishing priorities and for scheduling funding and

construction is pursued. First. criteria for setting

priorities among eligible projects must be established and

applied. Subsequent scheduling of construction is then a

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-5-function of the urgency of meeting the need for a priority project. the availability of funding. total project costs. and the estimated construction period.

DWW/bj

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