Rep. Buffie McFadyen of Pueblo West admits she is a couple votes shy of passing her bill allowing water judges to set terms and conditions for water quality when ruling on large water transfers that change both the use and point of diversion from the stream. Similar bills have been defeated each of the last three years.
"I lost a couple of votes after second reading," McFadyen said. "I'm not giving up."
Rep. Kathleen Curry of Gunnison said she still is working with stakeholders in an attempt to come up with a compromise on Senate Bill 37, which is the legislature's latest attempt to limit decreed recreational water rights that are needed for increasingly popular whitewater parks, mostly in Colorado's mountain communities.
"I'm circulating a floor amendment and if there is an agreement, we may have debate later this week," Curry said. "If not, we are under orders (from the Democrat leadership) to keep working on it."
McFadyen said her bill is needed because downstream water users, such as those on the lower Arkansas River, are left with degraded water quality when water is diverted higher up on the stream and transferred from agricultural to municipal use.
The House barely gave preliminary approval to House Bill 1352 on April 5, with Rep. Ray Rose, R-Denver, the only Western Slope lawmaker opposed. He said he is against giving water judges power to decide water quality issues that should be left with the Colorado Quality Control Commission.
Rose said he didn't agree with fellow Republican Josh Penry of Grand Junction that water judges already are deciding issues of water quality.
"The water courts today are imposing terms and conditions on water quality on whatever they want, with no strictures, no standards and no sideboards," Penry argued during the initial debate. "This creates clarity in the law and ties the water quality issue back to a standard that already exists with the Water Quality Control Commission. It minimizes the opportunity for judicial mischief."
Rose countered that the title of the bill itself broadens the power of the courts in water matters.
"The bill shifts a great deal of the responsibility and power to make these decisions away from the water experts and water community and into the hands of a judge, with no input from the water community," said Rose, who represents Telluride in the Colorado House. "This bill forces all these things into court."
McFadyen said her bill is aimed only at large water diversions.
"The bill is very narrow and very precise," she said. "It has to be a change of use of over 1,000 acre feet and has to have a change in the point of diversion. If there is a water quality problem in an application, the courts may consider water quality up to the water quality control commission standards in the stream segment affected."
If the bill passes the House, it still would have to go through the Senate with less than three weeks left in the 2006 session, which is scheduled to adjourn on May 10.
Curry's Senate Bill 37, introduced and ushered through the Senate by District 6 Sen. Jim Isgar, D-Hesperus, has been on the House calendar for debate since early in April. It was substantially re-written before its endorsement by the House Committee on Agriculture, Livestock and Natural Resources, which Curry chairs.
Curry said more rewrites are coming as she continues to meet with tourism, recreational and environmental groups on one side, and agricultural groups and Front Range water providers on the other.
As the measure now stands, applicants for a recreational in-channel diversion could choose from between seeking 35 percent of the stream flow between April 1 and Labor Day, or seeking a higher amount but be subject to a requirement that at least 85 percent of the water be available in the stream before the water right could be called out.
The 85 percent call threshold was one of the most controversial provisions of the Senate passed bill.
Rose, while agreeing the four-year-old state law allowing recreational water rights needs to be refined, opposed SB 37 in committee because it doesn't go far enough to define "boating" and a "reasonable recreational experience."
"The description of boating is still so wide open it could include a 19-foot sailboat," he said. "My preference is to just talk about kayaking since that's the only thing that takes a structure for a recreational in-channel diversion."
Curry successfully beat back an amendment in committee that would have restricted the use of a decreed recreational water right.
"We need to narrow the definition of boating to make sure it doesn't include things like inner-tubing or boogie boards," said Rep. Diane Hoppe, R-Sterling. "I can live with non-motorized boating as long as I know it's not going to include these other activities."
Her amendment was defeated by the committee on a 6-5 party-line vote.
Rep. Al White of Winter Park, who supported Hoppe's failed amendment, was the only Republican to endorse moving the bill from the agriculture committee to the House floor for debate.
"I want to pass this bill now and get these decrees in check," White said. "We will only have bigger problems if we allow these to go unchecked for another year. Let's get people to think twice about what they are asking for."
Meanwhile, a new water bill was introduced this week to codify months of work of the statewide Interbasin Compact Committee. If approved by lawmakers, the compact will govern procedures of nine water basin roundtables created last year when dealing with interbasin water projects.
"Upon … approval of the charter by the General Assembly, negotiations between basin roundtables may commence," the bill states.
House Bill 1400 also moves water districts 60, 61 and 63 from the Gunnison Basin roundtable to the Dolores, San Miguel and San Juan Basin roundtable that includes Telluride.
The bill, jointly sponsored by Reps. Curry, Penry and Bernie Buescher, D-Grand Junction, is expected to be fast-tracked through the legislative process because without lawmakers' approval, the compact committee will dissolve on July 1.
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