Fire Suppression Ponds Water Rights

Section 1 of the bill makes legislative findings and declarations. Section 2 allows a board of county commissioners (board), in consultation with its fire protection district, to apply to the state engineer for the designation of a pond as a fire suppression pond. The director of the division of fire prevention and control (director) in the department of public safety is required to promulgate rules to establish criteria for boards, in consultation with fire protection districts, to use to identify and evaluate potential fire suppression ponds.Before applying for the designation of a pond as a fire suppression pond, a board, in consultation with its fire protection district, must identify ponds in areas where the outbreak of a fire could result in a major wildfire disaster and perform a needs assessment of each such pond. If a pond that is under consideration for designation as a fire suppression pond is located in whole or in part upon private property, a board must acquire the voluntary written approval of each owner of private property that abuts the pond before the board applies to the state engineer for the designation of the pond as a fire suppression pond. For each pond that is identified and under consideration as a potential fire suppression pond, a board must provide notice of such fact to the state engineer. and to interested parties included in the substitute water supply plan notification list established for the water division in which the pond is located.Section 2 also prohibits the state engineer from draining any pond: ordering any pond to be drained or backfilled:

• While the pond is under consideration for designation as a fire suppression pond;
• If the state engineer has designated the pond as a fire suppression pond; or
• On and after the effective date of the bill, and until the date upon which the director promulgates rules, with exceptions.

Section 2 also states that a fire suppression pond and the water associated with it:

• Are not considered a water right;
• Do not have a priority for the purpose of determining water rights; and
• May not be adjudicated as a water right.

Section 3 requires the state engineer to review applications received from boards and, at the state engineer's discretion, designate ponds as fire suppression ponds. An application is presumed to be approved if the state engineer does not respond to the application within 63 days after the application is received by the state engineer. The state engineer may not designate any pond as a fire suppression pond unless the pond existed as of January 1, 1975. satisfies certain requirements.Section 3 also allows the state engineer to impose reasonable requirements on a board as a condition of designating a pond as a fire suppression pond and requires a board and a fire protection district to inspect a fire suppression pond at least annually.

The designation of a pond as a fire suppression pond expires 20 15 years after the date of the designation. Before the expiration, the board and the fire protection district must may perform a needs assessment of the pond. If the needs assessment demonstrates that the pond is in compliance with criteria established in the director's rules, the board and fire protection district shall notify the state engineer of such fact, and the state engineer shall redesignate the pond as a fire suppression pond. If the needs assessment demonstrates that the pond is not in compliance with the criteria, the board and fire protection district may must either:

• Notify the state engineer that the designation of the pond as a fire suppression pond should be rescinded or allowed to expire; or
• Provide to the state engineer a plan and a timeline for bringing the pond back into compliance with such criteria.

Section 3 also provides that the state engineer shall not designate more than 30 total surface acres of pond in any county as a fire suppression pond or designate any pond as a fire suppression pond unless:

• The pond existed with the same or greater surface area as of June 1, 1972;
• Decreed storage rights for the pond are limited to use within the pond and only livestock watering, wildlife, or other nonconsumptive uses;
• The pond is not included as a structure in a decreed plan for augmentation, an appropriative right of exchange, or a state-approved substitute water supply plan;
• The surface area of the pond does not exceed 6 acres; and
• The board that requested the designation has provided notice of the request to interested parties included in the substitute water supply plan notification list established for the water division in which the pond is located.

Within 70 days after the state engineer designates a pond as a fire suppression pond, a holder of a decreed water right may file with the water clerk of the water division in which the fire suppression pond is located a petition for review of the state engineer's decision. Upon receiving a petition, a water judge must conduct a review of the state engineer's decision. A water judge may nullify the state engineer's designation of a pond as a fire suppression pond if, after considering the entire record, including any evidence of material injury, the judge finds that:

• In applying for such designation, the board did not describe a pond that complies with criteria established by rules promulgated by the director; or
• The state engineer's decision did not accord with certain other requirements in the bill concerning fire suppression ponds.

Section 4 states that the designation of fire suppression ponds by the state engineer does a proposed fire suppression pond is presumed to not cause material injury to vested water rights. A holder of a decreed water right may rebut the presumption by providing evidence to the state engineer sufficient to show that material injury has occurred or will occur to the decreed water right.Section 5 appropriates, for the 2022-23 state fiscal year, $19,428 from the general fund to the department of natural resources for use by the executive director's office, to be used as follows:

• $11,828 for the purchase of legal services; and
• $7,600 for the purchase of information technology services.

Section 5 also appropriates, for the 2022-23 state fiscal year, $11,828 to the department of law, to be used to provide legal services for the department of natural resources. This appropriation is from reappropriated funds received from the department of natural resources. Section 5 also appropriates, for the 2022-23 state fiscal year, $7,600 to the office of the governor for use by the office of information technology to provide information technology services for the department of natural resources. This appropriation is from reappropriated funds received from the department of natural resources.

(Note: Italicized words indicate new material added to the original summary; dashes through words indicate deletions from the original summary.)

(Note: This summary applies to the reengrossed version of this bill as introduced in the second house.)