Audubon Colorado Legislative Report
The second regular session of
the 63rd General Assembly convened on January 9th. There
have been 478 bills introduced so far and more on the way. The legislature has
been slow to start this year, but committee action will heat up this week. The
Audubon Legislative committee has reviewed legislation introduced or bills where
we have advance drafts. Priority bills are marked with an asterisk.
(Johnson, Lamborn)
Status: House Ag
HB1107 is a re-run of a
takings bill introduced last year by the same sponsor, Rep. Steve Johnson.
HB1107 applies to all levels of state and local government as well as boards,
commissions, and institutions of higher education. Any regulation, which burdens
property, must be compensated. The bill is so broad that all environmental
regulatory programs would be impacted. Zoning, wildlife regulations, water
quality, air quality, open space and habitat would all be affected.
Defeat of this bill must be
our highest priority. Please see the Audubon fact sheet at the end of this
report.
HB1107 was heard on the 31st
in the House Ag Committee. We believe we had the votes to defeat the bill, but
no vote was taken. The bill was taken off the table to permit the sponsor to
make changes to it. Please note. We do not want to repair the bill. We want it
to be defeated. Regulation is not confiscation.
(Matsunaka)
Status: Senate Ag
SB75 creates a 9 member
commission within DOLA to investigate federal compliance with federal
agricultural laws, social and economic costs of any failure to implement
existing federal Ag policy, and the limits or absence of state statutes
concerning interstate Ag policy. It mandates investigation of these matters with
respect to regulatory takings with express reference to amendments V and XIV of
the US Constitution. The commission would file a report of their findings with
the senate Ag committees, the governor, and the attorney general.
It is unclear exactly what
positive actions a state commission investigating federal compliance with
federal laws would accomplish. Of concern to us is the potential that a
commission composed exclusively of agricultural interests and directed to
specifically consider whether the federal government is complying with
constitutional takings prohibitions would encourage investigation of the impacts
of federal environmental laws on property rights. Would the commission be
hearing complaints that the ESA is depriving farmers of full use of their lands?
What about complaints that strategies intended to make FERC and BUR dams more
responsive to environmental harm are depriving farmers of additional water for
irrigation?
(Gordon)
Status: Senate Judiciary
Colorado’s rivers and lakes are at risk from the combination of growing demands for water and a legal system that was not designed to balance water uses with the needs of the rivers themselves.
Under Colorado’s complex
water laws, a water right is a right to use water. Anyone can secure the right
to take water out of a stream or lake and use it for irrigation or city water
systems or for industry. But if anyone simply leaves some water in the stream,
then, under current Colorado water law, they are no longer “using” the water,
and they would forfeit their right to the water. SB156 creates a tool to keep
water in our streams and lakes. This is an environmental community bill and will
be a top priority for us.
Please note Audubon fact sheet at end of this report
(Evans, Miller)
Status: Senate Appropriations
SB87 creates a check-off on state income tax forms for voluntary contributions to the Watershed Protection Fund. The bill specifies that the fund shall be used by the Colorado Watershed Assembly to award grants to local watershed groups for protection and restoration of lands and natural resources.
SB87 passed the Senate Business Affairs Committee and is now in Senate Appropriations.
(Andrews)
Status: Senate Ag
Position: Oppose
SB46 increases the membership of the CWCB and shifts the existing balance by adding an additional Front Range member. The ex-officio members remain the same. Of the remaining members, 4 will be from the West Slope and 6 will be from the Front Range. The new member will be from the South Platte Drainage above the Henderson gauge.
(Entz, Hoppe)
Status: Senate Appropriations
Position: FYI
SB68 gives appointed members
of the CWCB not otherwise employed by the state a $50 per diem for each day
spent in the discharge of official duties.
(Hillman, Kester)
Position: Watch
SB148 imposes mitigation
requirements on the conversion of agricultural water rights to urban uses in a
different county. It also allows any county to levy a sales tax, use tax, ad
valorem tax or a combination of such taxes for the purpose of purchasing,
leasing, or changing the use of water rights. The taxes are limited to1%, must
be voter approved, and must be credited to a specially dedicated water fund.
Mitigation may include
an agreement of payment in lieu of taxes, an agreement to provide water rights
or storage and conveyance facilities, agreements for revenue sharing between the
local government acquiring the water, and the county from which the use of the
water is being transferred. Mitigation agreements may address water
quality, revegetation, and any other issue mutually agreed to by both parties.
The bill also stipulates that if the local governments cannot reach an
agreement, the water court shall not grant the change of use unless it imposes
sufficient terms and conditions to mitigate the adverse effects in the county
from which the agricultural water is being transferred.
(White, Taylor)
Status: House Ag
Position: FYI
HB1024 creates a standing water committee. Of the ten-member committee, 4 members shall either reside west of the continental divide or represent a district the majority of which lies west of the continental divide. The committee is charged with monitoring the conservation, use, development and financing of the water resources of Colorado and to propose and review water resources legislation.
(Entz, Snook)
Status: Senate Floor
Position: Oppose
SB44 changes the dates during
which hunting of black bears is not allowed. According to the initiative passed
by voters, hunting is not allowed between May 1 and September 1. The bill
shortens the prohibited time. Under SB44, hunting would not be allowed between
May 1 and July 15. The September 1 date was chosen carefully since biologists
agree that cubs continue to nurse until the middle of August. Additionally,
existing statutes already authorize the Wildlife Commission to deal with problem
bears. This bill has the potential to endanger “good” bears which are not
foraging into towns. Finally, changing the start of the season means that
hunters could be entering the back country at the height of the summer tourism
season. This could endanger hikers, birdwatchers and other nature enthusiasts.
(Snook, Entz)
Status: House Ag
Position: Oppose
HB1221 is another attempt to
change the dates during which bear hunting is permitted. Under this proposal,
the Division of Wildlife could issue permits as early as June 25 if they
determine that reduction of the bear population is necessary for protection of
public health, safety, and welfare.
(Weddig, Fitz-Gerald)
Status: House Ag
Position: Support
HB1183 expands the exceptions
to the statute requiring county commissioner approval prior to the release of
prairie dogs across county lines. The bill permits the relocation of prairie
dogs, without prior commissioner approval, to private land that is enrolled in a
conservation incentive program, and permitted by the Division of Wildlife; or to
federal, state, or municipal land deemed suitable by the division of Wildlife.
(Taylor, Vigil)
Status: Senate Ag
Position: Support
SB117 repeals declaratory
language in existing statute about the immediate need for control of destructive
rodent pests “such as jackrabbits, prairie dogs, ground squirrels, pocket
gophers and rats.” The bill also replaces statutory mandates that the Department
of Agriculture control destructive rodent pests with permissive language that
permits the department of Agriculture to control such pests. Finally the bill
permits rather than requires that counties appropriate funds to control
destructive rodent pests.
(Rippy, Taylor)
Position: Support
HB1012 appropriates
$10,000,000 from the General Fund to the Species Conservation Trust Fund. The
trust fund was created in 1998 with an initial appropriation of $10 million
from other state funds for species recovery programs. In 1999-2000, an
additional $5million was appropriated to the fund.
(Hodge)
Status: Dead
Position: FYI
HB1065 doubled the fine for
any traffic violation committed in a wildlife-crossing zone. The bill defined a
wildlife-crossing zone as the distance from a wildlife crossing sign to another
sign stating that one is leaving a wildlife-crossing zone. In the absence of the
second sign, the zone would have extended a half mile from the wildlife crossing
sign, or a distance that was specified on the sign.
HB1065 died in the House
Transportation Committee.
(Stengel)
Status: House Floor
In its current form, the bill
simply adds one at-large member so that there will be an odd number of voting
members in order to eliminate tie votes. The commission makeup under HB1084
would include nine voting members and two ex officio members for a grand total
of eleven members. The districts and categories remain unchanged.
(Fritz)
Status: House Finance
Position: Support
HB1091 is primarily a penalty
update bill. Most of the bill deals with increasing penalties for violations of
Division of Wildlife or Division of State Parks rules. There is one section that
increases the authority of the Wildlife commission to deal with problem
wildlife. We were troubled by language in the bill as introduced that gave the
Commission authority to dispose of wildlife that posed “an undue threat to other
wildlife”. While not the intent of the Division of Wildlife, this language could
have been read as authorizing destruction of predators for simple predation.
We worked with the Division
of wildlife to strike the language dealing with “undue threats”. The House Ag
committee adopted the amendment and we support the bill in its current form.
(Alexander, Entz)
Status: House Ag
Position: Support
HB1142 makes a one-time
appropriation of $160,000 from the General Fund to the Wildlife Cash Fund for
the purchase of 3.5 acres in the Dolores State Park. In order to receive Dingall-Johnson
or Pittman-Robertson matching federal dollars, state license fees may only be
used for wildlife purposes. The American Legion operates a park on 3 ½ acres in
the Dolores State Park. The US Fish and Wildlife Service has determined that the
park is not a wildlife use. Since Dolores State Park was purchased, in part,
with state license revenue, the federal matching funds are endangered by the
operation of the American Legion park. The appropriation reimburses the DOW for
moneys expended from the Wildlife Cash Fund to purchase land that the American
Legion currently leases. As a result, the legion may continue to operate the
park without endangering federal funding.
GROWTH
Position: Support
SB120 requires local
governments to enforce their master plans through the adoption of rule,
regulation, and ordinance. It also requires the master plans to address a
representative list of elements, including environmental quality.
We anticipate that
development interests will try to strike the mandatory environmental planning
element and to insert takings language, as they did during the special session.
(Matsunaka)
Status: Senate Floor
Position: Oppose
Enterprise zones were
established to provide financial incentives to encourage economic growth, which
we would hope would occur in municipalities. SB2 requires all new enterprise
zones to be located entirely within remote rural areas. Sen. Hagedorn attempted
to amend the bill in the Senate Ag committee to at least require that the rural
counties that ask for public dollars to encourage growth first adopt an
enforceable master plan with a representative list of elements including
environmental protections. The Hagedorn amendment failed, and the bill is now on
the Senate floor.
(Jameson)
Status: Dead
Position: Support
HB1096 required cities and
counties over a threshold size or which had more than a 5% growth rate to
implement a public works plan. It specified components of a public works plan,
including provisions for water supply, sewer systems, police and fire
protection, and transportation. The bill directed local governments to
demonstrate how they would have provided public works for the areas they
expected to occupy in the next 10 years.
HB1096 died on a party line
vote in the House Local Government Committee.
(Vigil)
Status: House State Affairs
Position: Support
Current law on impact fees
does not permit assessment of school impact fees. HB1251 does, clearly and
explicitly. Specifically, HB1251 includes school capital facilities in existing
provisions authorizing local governments to impose impact fees. The bill also
expands the definition of “capital facilities” to include any improvements or
facilities which are directly related to any service that a school district is
authorized to provide. Finally the bill eliminates the prohibition on impact
fees as a funding source for capital facilities that are the subject of an IGA
between a school district and a local government.
(Perlmutter)
Status: Senate Floor
Position: watch
SB102 permits the assessment
of school impact fees, but only to defray capitol construction costs and only
when a school district has reached 50% of its bonding indebtedness limit
(roughly 15% of the districts) or is growing at 2.5%.
(Spradley, Owen)
Status: House floor
HB1098 limits the existing
Colorado tax credit for perpetual conservation easements to federal standards.
The federal standards provide specific and valuable environmental protections.
For example, federal standards require that open space preservation is not
satisfied if the conservation easement permits future development that would
interfere with the scenic quality of the land. Additionally, conservation
purposes must be clearly spelled out, and uses inconsistent with the
conservation values are prohibited. Any taxpayers claiming conservation easement
tax credits contrary to law shall be liable for deficiencies, interest, and
penalties.
(Taylor, White)
Status: Senate Ag
SB104 authorizes the
Department of Natural Resources to acquire conservation easements for the land
parcels known as Arrowhead and Berry Creek. These lands are currently under the
control and supervision of the State board of land commissioners. The bill
specifies that DNR may only use moneys donated by Eagle County to finance the
acquisition of the easements. The bill also authorizes DNR to transfer the
conservation easements to Eagle County.
(Dean, Tupa)
Position: Support
Status: House Finance
Currently lottery will sunset
in 2009. HB1250 extends lottery until 2024. HB1250 is designed to facilitate
GOCO’s bonding authority approved by the voters in the November election.
**There will be legislation to ban the use of cyanide in future heap-leach mining operations.
The cyanide bill has not yet
been introduced so there is no number. We have seen the draft legislation.
Position: Support the draft
proposal
Background:
There have been three heap-leach operations in Colorado history: Summitville, Battle Mountain, and Cripple Creek-Victor. All have been plagued with environmental problems. Summitville’s problems are well known. The cleanup of this superfund site has cost taxpayers over $190 million so far.
Battle Mountain began operating in 1991. Within one year, they were assessed the largest fine against a Colorado mine to that date for exceeding permit levels of cyanide in their tailings pond by 5000%. The mine closed in 1997. In 1998, the EPA discovered active discharge of contaminated groundwater from filled in pits into Rito Seco Creek. Perpetual treatment systems were installed, but water quality was not restored, and the discharge continues today.
Cripple Creek-Victor (CCV) is
the only currently operating open pit, heap-leach operation. The EPA recently
issued a Formal Notice of Violation, charging the mine with exceeding permit
levels for cyanide, copper, ammonia, zinc, suspended solids and total toxicity.
Cyanide heap-leaching is a
failed technology. It must be stopped to prevent future environmental
catastrophes.
AUDUBON COLORADO
RESPECTFULLY Opposes HB1107: protection against REGULATORY impairments
HB1107 provides a
cause of action against the state of Colorado, its agencies, its citizen boards,
commissions, councils, and institutions of higher education, as well as all
local governments, for any regulatory action, which burdens a private interest
in property. HB1107 expressly and explicitly applies where no court would find
that a taking of property had occurred.
Currently the law
does not require the citizens of Colorado, through their elected governments, to
pay for every cost associated with complying with measures implemented to
protect the health, safety, welfare and property rights of neighboring property
owners.
·
HB1107 goes far beyond existing statutory or constitutional protections against
the taking of private property.
HB1107 proposes to
protect private interests in property from "restrictions" and "limits" which "may
not clearly amount to a takings as that term is currently construed under the
Colorado or United States Constitution" 29-20-201 (c)
·
HB1107 is not balanced
Existing property
law and the court decisions interpreting it require a balance between the rights
of the individual and the rights of the community. HB1107 looks only at the
effects of regulations on the regulated and does not consider the needs of the
community
·
a property right is not an absolute right
Property owners have
never been allowed to use their property in a way, which injures others. HB1107
would change this central tenet of property law.
When we require
environmental controls, there is a cost to the property owner. The absence of
the controls is a cost to everyone else.
·
HB1107 IS TOO EXPENSIVE
We either do not
regulate or pay for the consequences or do regulate and pay for the privilege.
Anyone can secure a water
right to take water out of the stream, why not to keep it in the stream? This
legislative session, Senator Ken Gordon will introduce legislation, which would
allow anyone, not just the state, to acquire existing water rights to keep water
in the stream for recreation, fish and wildlife, scenic beauty, or ecological
diversity.
Optimum utilization of Colorado’s water includes use of our rivers and lakes for recreation, fish and wildlife habitat, and for scenic purposes. These uses are in fact essential to maintain both the natural heritage and economy of Colorado. Permitting private parties to change existing water uses to instream uses would be a significant new card to play in Colorado’s water game. Agricultural interests, local governments, water districts, corporations, private individuals, or land trusts could purchase existing water rights and seek to convert those rights to instream uses.
HOW WOULD THE PROPOSED LAW WORK?
The water court would need to approve a specific plan for a change of use of all or part of an existing decreed water diversion to an instream use. The applicant must prove no injury to any other water right.
·
A Change In Use
Remember that our entire
water law system is based on the fundamental premise that a property right in
water is the right to use the water. The use may be changed if a water court
agrees that the change will maintain a legally recognized beneficial use and can
be done without any harm to any other water right holder. Water courts hear
“change cases” every day. Senator Gordon’s bill simply says that an existing
water right to use water out of a stream may be changed to a right to use
water in the stream. The owner of the right seeking the change will have
to submit a plan for instream use to the court. The plan will identify the new
beneficial use, (recreation, fish and wildlife, scenic beauty,) the amount of
water and exact location where the flow will be maintained.
·
NO Injury
Anyone who has a water right and thinks they might be injured by keeping water in the stream may object to the court, just as they would now for any other change. If the Water Court approves the plan, the change proceeds, just as any other change case would.
·
A Private Property Issue
In Colorado, a water right is a private property right. Currently only the state can own water for instream use. Why should only the state be able to own water rights for beneficial use within a stream? The proposed legislation would not detract from nor impair Colorado’s existing instream flow program; it would simply permit anyone, not just the state, to secure a right to use water in the stream.