HB 1340

NOTE: This bill has been prepared for the signatures of the appropriate legislative
officers and the Governor. To determine whether the Governor has signed the bill
or taken other action on it, please consult the legislative status sheet, the legislative
history, or the Session Laws.
     HOUSE BILL 26-1340
     BY REPRESENTATIVE(S) Winter T. and Mauro, Bacon, Boesenecker,
     Caldwell, Clifford, Duran, Goldstein, Joseph, McCormick, Nguyen,
     Rutinel, Smith, Soper, Titone, McCluskie, Jackson, Stewart K.;
     also SENATOR(S) Pelton R. and Hinrichsen, Kipp, Simpson.
     CONCERNING REQUIREMENTS FOR FORMERLY IRRIGATED AGRICULTURAL
             LAND FOR WHICH AN AGRICULTURAL IRRIGATION WATER RIGHT IN
             WATER DIVISION 2 IS CHANGED TO ANOTHER BENEFICIAL USE.
     Be it enacted by the General Assembly of the State of Colorado:
             SECTION 1. In Colorado Revised Statutes, 37-92-305, add (4.7)
     as follows:
            37-92-305. Standards with respect to rulings of the referee and
     decisions of the water judge - definitions.
             (4.7) (a) NOTWITHSTANDING SUBSECTION (4.5) OF THIS SECTION, THE
     TERMS AND CONDITIONS APPLICABLE TO CHANGES OF USE OF WATER RIGHTS
     FROM AGRICULTURAL IRRIGATION PURPOSES TO OTHER BENEFICIAL USES IN
     WATER DIVISION 2 DECREED ON OR AFTER JANUARY 1, 2027, ARE DESIGNED
     TO ACCOMPLISH REVEGETATION OR CONVERSION TO DRYLAND FARMING,
     ________
     Capital letters or bold & italic numbers indicate new material added to existing law; dashes
     through words or numbers indicate deletions from existing law and such material is not part of
     the act.
EROSION CONTROL, AND WEED MANAGEMENT ON LAND FROM WHICH
IRRIGATION WATER IS PERMANENTLY REMOVED FOR OTHER BENEFICIAL
USES. THE WATER COURT SHALL APPLY REVEGETATION OR CONVERSION TO
DRYLAND FARMING TERMS AND CONDITIONS IN A DECREE APPROVING A
SUBSEQUENT CHANGE OF USE OF A PREVIOUSLY CHANGED AGRICULTURAL
IRRIGATION WATER RIGHT ONLY IF THE PRIOR DECREE CHANGING THE SAME
AGRICULTURAL IRRIGATION WATER RIGHT DID NOT INCLUDE REVEGETATION
OR CONVERSION TO DRYLAND FARMING TERMS OR CONDITIONS. THE WATER
RIGHT OWNER SHALL COMPLY WITH SUCH TERMS AND CONDITIONS. THE
TERMS AND CONDITIONS APPLICABLE TO WATER DIVISION 2 INCLUDE:
       (I) (A) WHEN APPLYING TO THE WATER COURT FOR A CHANGE OF USE
OF A WATER RIGHT PURSUANT TO THIS SUBSECTION (4.7)(a), THE WATER
RIGHT OWNER SHALL IDENTIFY FOR THE WATER COURT'S CONSIDERATION
SITE-SPECIFIC CRITERIA AND AN ASSOCIATED SCIENTIFIC AND OBJECTIVE
EVALUATION METHODOLOGY TO MEASURE AND DETERMINE THE EXTENT TO
WHICH REVEGETATION OR CONVERSION TO DRYLAND FARMING IS
SUCCESSFULLY ESTABLISHED ON THE FORMERLY IRRIGATED AGRICULTURAL
LAND. THE WATER COURT SHALL INCLUDE SITE-SPECIFIC CRITERIA AND AN
ASSOCIATED SCIENTIFIC AND OBJECTIVE EVALUATION METHODOLOGY IN THE
DECREE APPROVING THE CHANGE OF USE OF THE WATER RIGHT.
      (B)   THE SITE-SPECIFIC CRITERIA IDENTIFIED PURSUANT TO
SUBSECTION (4.7)(a)(I)(A) OF THIS SECTION MUST INCLUDE WEED
MANAGEMENT PROVISIONS DESIGNED TO PROTECT THE SOIL RESOURCE,
PREVENT WEED INFESTATIONS, AND PROTECT THE AVAILABLE SOIL
MOISTURE. AT A MINIMUM, SUCH PROVISIONS MUST INCLUDE REQUIREMENTS
THAT WEED INFESTATIONS BE CONTROLLED BY METHODS SUCH AS MOWING,
HERBICIDE APPLICATION, OR BIOLOGICAL CONTROL OR BY A COMBINATION
OF MOWING, HERBICIDE APPLICATION, BIOLOGICAL CONTROL, AND OTHER
APPROPRIATE METHODS. NOXIOUS WEEDS MUST BE CONTROLLED PURSUANT
TO THE "COLORADO NOXIOUS WEED ACT", ARTICLE 5.5 OF TITLE 35.
     (II) (A) IF, PRIOR TO APPLYING TO THE WATER COURT FOR THE
CHANGE OF USE OF THE WATER RIGHT, THE WATER RIGHT OWNER HAS,
PURSUANT TO SECTION 24-65.1-501, OBTAINED A PERMIT FROM OR ENTERED
INTO AN INTERGOVERNMENTAL AGREEMENT WITH THE LOCAL LAND USE
AUTHORITY WHERE THE FORMERLY IRRIGATED AGRICULTURAL LAND IS
LOCATED, WHICH PERMIT OR AGREEMENT REQUIRES REVEGETATION OR
CONVERSION TO DRYLAND FARMING AND INCLUDES SITE-SPECIFIC CRITERIA
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AND AN ASSOCIATED SCIENTIFIC AND OBJECTIVE EVALUATION
METHODOLOGY, THE COURT SHALL USE THE SITE-SPECIFIC CRITERIA AND
ASSOCIATED SCIENTIFIC AND OBJECTIVE EVALUATION METHODOLOGY SET
FORTH IN THE PERMIT OR INTERGOVERNMENTAL AGREEMENT.
      (B) IF THE WATER RIGHT OWNER HAS NOT OBTAINED A PERMIT OR
ENTERED INTO AN INTERGOVERNMENTAL AGREEMENT PURSUANT TO
SECTION 24-65.1-501 AND THE LOCAL LAND USE AUTHORITY WHERE THE
FORMERLY IRRIGATED AGRICULTURAL LAND IS LOCATED HAS ADOPTED
SITE-SPECIFIC CRITERIA AND A SCIENTIFIC AND OBJECTIVE EVALUATION
METHODOLOGY FOR REVEGETATION OR CONVERSION TO DRYLAND FARMING,
THE WATER COURT SHALL USE THAT CRITERIA AND EVALUATION
METHODOLOGY.
      (III) (A) UPON ISSUING A CHANGE-OF-USE DECREE PURSUANT TO
THIS SUBSECTION (4.7)(a), THE WATER COURT SHALL APPOINT, AND THE
WATER RIGHT OWNER SHALL PAY FOR THE SERVICES OF, A NEUTRAL
THIRD-PARTY REVEGETATION OR DRYLAND FARMING EXPERT WHO SHALL
EVALUATE THE PROGRESS OF THE REVEGETATION OR CONVERSION TO
DRYLAND FARMING ON THE FORMERLY IRRIGATED AGRICULTURAL LAND, ON
A FIELD-BY-FIELD BASIS, AND DETERMINE WHEN AND TO WHAT EXTENT THE
REVEGETATION OR CONVERSION TO DRYLAND FARMING IS SUCCESSFULLY
ESTABLISHED.
      (B) WITHIN NINETY DAYS BEFORE NOVEMBER 1 OF EACH YEAR, THE
THIRD-PARTY EXPERT SHALL CONDUCT AN ANNUAL FIELD REVIEW OF THE
FORMERLY IRRIGATED AGRICULTURAL LAND AND PRODUCE FIELD-BY-FIELD
STATUS REPORTS ANNUALLY UNTIL REVEGETATION OR CONVERSION TO
DRYLAND FARMING IS SUCCESSFULLY ESTABLISHED, AS APPROVED BY THE
WATER COURT.
      (C) AT LEAST TWENTY DAYS PRIOR TO THE FIELD REVIEW, THE
WATER RIGHT OWNER SHALL GIVE NOTICE OF THE OCCURRENCE OF THE
THIRD-PARTY EXPERT'S FIELD REVIEW TO THE OWNER OF THE FIELD WITHIN
THE FORMERLY IRRIGATED AGRICULTURAL LAND AND THE PARTIES TO THE
CHANGE OF USE OF THE WATER RIGHT PROCEEDING, AND THE PARTIES SHALL
HAVE AN OPPORTUNITY TO PARTICIPATE IN THE FIELD REVIEW.
      (D) THE THIRD-PARTY EXPERT SHALL STATE IN EACH STATUS REPORT
THE PERCENTAGE OF THE FORMERLY IRRIGATED FIELD ON WHICH
PAGE 3-HOUSE BILL 26-1340
REVEGETATION OR CONVERSION TO DRYLAND FARMING IS SUCCESSFULLY
ESTABLISHED.
      (E) THE THIRD-PARTY EXPERT SHALL PROVIDE THE STATUS REPORT
TO THE WATER RIGHT OWNER ON OR BEFORE DECEMBER 1 OF EACH YEAR,
AND THE WATER RIGHT OWNER SHALL SUBMIT THE STATUS REPORT TO THE
OWNER OF THE FORMERLY IRRIGATED FIELD, THE WATER COURT, THE
DIVISION OF WATER RESOURCES, AS DESCRIBED IN SECTION 24-33-104 (1)(e),
AND THE PARTIES TO THE CHANGE OF USE OF THE WATER RIGHT PROCEEDING
WITHIN TWENTY DAYS AFTER RECEIVING THE STATUS REPORT FROM THE
THIRD-PARTY EXPERT. THE WATER COURT SHALL GIVE THE PARTIES SIXTY
DAYS TO COMMENT ON OR REBUT THE STATUS REPORT OR THE STATUS OF
THE FORMERLY IRRIGATED FIELD.
      (IV) (A) ANNUAL FIELD REVIEWS AND STATUS REPORTS SHALL
CONTINUE PURSUANT TO SUBSECTION (4.7)(a)(III) OF THIS SECTION UNTIL
THE WATER COURT DETERMINES, BASED ON THE THIRD-PARTY EXPERT'S
STATUS REPORT AND AFTER CONSIDERING ANY COMMENTS OR REBUTTALS
SUBMITTED WITHIN THE COMMENT PERIOD, THAT REVEGETATION OR
CONVERSION TO DRYLAND FARMING IS SUCCESSFULLY ESTABLISHED ON A
FIELD. UPON SUCH A DETERMINATION, THE WATER COURT MAY DEEM THE
TERMS AND CONDITIONS SET FORTH IN THIS SUBSECTION (4.7)(a) SATISFIED
AS TO THAT FIELD.
     (B) IF THE WATER COURT FINDS THAT THE WATER RIGHT OWNER HAS
DEMONSTRATED, OVER MULTIPLE REPORTING PERIODS, A SUSTAINED
FAILURE TOWARD ACHIEVING REVEGETATION OR CONVERSION TO DRYLAND
FARMING, THE WATER COURT MAY, IN ITS DISCRETION, LIMIT THE
PERCENTAGE OF THE WATER SUBJECT TO THE CHANGED WATER RIGHT
AVAILABLE FOR THE NEW BENEFICIAL USE. SUCH A LIMITATION MUST BE
PROPORTIONAL TO THE EXTENT TO WHICH REVEGETATION OR CONVERSION
TO DRYLAND FARMING HAS NOT BEEN SUCCESSFULLY ESTABLISHED.
      (C) IF THE WATER COURT DETERMINES THAT REVEGETATION OR
CONVERSION TO DRYLAND FARMING IS SUCCESSFULLY ESTABLISHED AND
THE COURT MAKES SPECIFIC FINDINGS, SUPPORTED BY THE RECORD, THAT
THE FIELD PRESENTS A SUBSTANTIAL RISK THAT REVEGETATION OR
CONVERSION TO DRYLAND FARMING WILL NOT CONTINUE TO BE
SUCCESSFULLY ESTABLISHED, THEN THE COURT MAY IMPOSE ADDITIONAL,
TIME-LIMITED OVERSIGHT PERIODS.
PAGE 4-HOUSE BILL 26-1340
      (V) A WATER RIGHT OWNER IMPLEMENTING A DECREED CHANGE OF
USE OF A WATER RIGHT PURSUANT TO THIS SUBSECTION (4.7)(a) SHALL
COMPLY WITH THE TERMS AND CONDITIONS DECREED BY THE WATER COURT
TO ENSURE REVEGETATION OR CONVERSION TO DRYLAND FARMING IS
SUCCESSFULLY ESTABLISHED. THE WATER COURT SHALL IMPOSE TERMS AND
CONDITIONS SUFFICIENT TO ENSURE REVEGETATION OR CONVERSION TO
DRYLAND FARMING IS SUCCESSFULLY ESTABLISHED AND ORDER THAT SUCH
TERMS AND CONDITIONS REMAIN IN EFFECT UNTIL THE APPLICABLE
REQUIREMENTS OF THIS SUBSECTION (4.7)(a) ARE FULLY SATISFIED. THE
COURT SHALL ALSO DO ONE OF THE FOLLOWING:
      (A) ORDER THE WATER RIGHT OWNER TO PROVIDE FINANCIAL
ASSURANCE, SUCH AS A PERFORMANCE BOND OR OTHER FINANCIAL
SECURITY, TO THE LOCAL LAND USE AUTHORITY WHERE THE FORMERLY
IRRIGATED AGRICULTURAL LAND IS LOCATED IN AN AMOUNT SUFFICIENT TO
COVER THE REASONABLY ANTICIPATED TOTAL COST TO ACHIEVE
SUCCESSFULLY ESTABLISHED REVEGETATION ON THE FORMERLY IRRIGATED
AGRICULTURAL LAND;
       (B) PLACE LIMITATIONS ON THE TIMING OR PERCENTAGE OF WATER
SUBJECT TO THE WATER RIGHT THAT MAY BE USED FOR THE NEW BENEFICIAL
USE WHILE ALLOWING THE CONTINUED EXERCISE OF EXISTING DECREED USES
OF THE WATER AND, IN ESTABLISHING SUCH LIMITATIONS, CONSIDER THE
SITE-SPECIFIC CRITERIA AND OTHER FACTORS RELEVANT TO THE SUCCESSFUL
ESTABLISHMENT OF REVEGETATION OR CONVERSION TO DRYLAND FARMING;
OR
      (C) IF THE WATER RIGHT OWNER HAS OBTAINED A PERMIT OR
ENTERED INTO AN INTERGOVERNMENTAL AGREEMENT PURSUANT TO
SECTION 24-65.1-501 THAT REQUIRES FINANCIAL ASSURANCES TO THE LOCAL
LAND USE AUTHORITY IN AN AMOUNT SUFFICIENT TO COVER THE
REASONABLY ANTICIPATED TOTAL COST TO ACHIEVE SUCCESSFULLY
ESTABLISHED REVEGETATION OR THAT ESTABLISHES REQUIREMENTS THAT
GOVERN THE TIMING OF USE OR PERCENTAGE OF WATER SUBJECT TO THE
WATER RIGHT THAT MAY BE USED FOR THE NEW BENEFICIAL USE WHILE
SIMULTANEOUSLY ACHIEVING SUCCESSFULLY ESTABLISHED REVEGETATION
OR CONVERSION TO DRYLAND FARMING, ADOPT AND INCORPORATE THOSE
REQUIREMENTS INTO THE CHANGE-OF-USE DECREE AND NOT IMPOSE EITHER
OF THE REQUIREMENTS SET FORTH IN SUBSECTIONS (4.7)(a)(V)(A) AND
(4.7)(a)(V)(B) OF THIS SECTION.
PAGE 5-HOUSE BILL 26-1340
       (VI) IF, FOLLOWING A CHANGE OF USE OF A WATER RIGHT PURSUANT
TO THIS SUBSECTION (4.7)(a), THE WATER COURT FINDS THAT A WATER
RIGHT OWNER OR A LANDOWNER, WITHIN A REASONABLE AMOUNT OF TIME,
IS IRRIGATING THE FORMERLY IRRIGATED AGRICULTURAL LAND WITH
ANOTHER SOURCE OF WATER; IS RE-IRRIGATING THE LAND WITH THE WATER
FROM THE SAME WATER RIGHT, AS AUTHORIZED BY THE WATER COURT; OR
IS CONVERTING THE LAND FROM IRRIGATED AGRICULTURAL LAND TO
ANOTHER USE IN WHICH WEEDS AND SOIL EROSION ARE ADEQUATELY
CONTROLLED, THE WATER COURT SHALL DEEM THE TERMS AND CONDITIONS
SET FORTH IN THIS SUBSECTION (4.7)(a) SATISFIED.
       (VII) THIS SUBSECTION (4.7)(a) IS NOT INTENDED TO AND MUST NOT
BE CONSTRUED TO AFFECT THE PROVISIONS GOVERNING LAND USE
AUTHORITY SET FORTH IN ARTICLE 65.1 OF TITLE 24.
       (b) AS USED IN SUBSECTION (4.7)(a) OF THIS SECTION:
      (I) "PERMIT" MEANS A PERMIT ISSUED PURSUANT TO SECTION
24-65.1-501.
       (II)  "SUCCESSFULLY ESTABLISHED" OR "SUCCESSFUL
ESTABLISHMENT" MEANS THAT REVEGETATION OR CONVERSION TO DRYLAND
FARMING IS ACCOMPLISHED AND WEEDS AND SOIL EROSION ARE
ADEQUATELY CONTROLLED ON THE FORMERLY IRRIGATED AGRICULTURAL
LAND IN ACCORDANCE WITH THE SITE-SPECIFIC CRITERIA AND ASSOCIATED
SCIENTIFIC AND OBJECTIVE EVALUATION METHODOLOGY INCLUDED IN THE
WATER COURT'S DECREE PURSUANT TO SUBSECTION (4.7)(a)(I)(A) OF THIS
SECTION.
       SECTION 2. Act subject to petition - effective date. This act
takes effect at 12:01 a.m. on the day following the expiration of the
ninety-day period after final adjournment of the general assembly (August
12, 2026, if adjournment sine die is on May 13, 2026); except that, if a
referendum petition is filed pursuant to section 1 (3) of article V of the state
constitution against this act or an item, section, or part of this act within
such period, then the act, item, section, or part will not take effect unless
approved by the people at the general election to be held in November 2026
PAGE 6-HOUSE BILL 26-1340
and, in such case, will take effect on the date of the official declaration of
the vote thereon by the governor.
____________________________  ____________________________
Julie McCluskie  James Rashad Coleman, Sr.
SPEAKER OF THE HOUSE  PRESIDENT OF
OF REPRESENTATIVES  THE SENATE
____________________________  ____________________________
Vanessa Reilly  Esther van Mourik
CHIEF CLERK OF THE HOUSE  SECRETARY OF
OF REPRESENTATIVES  THE SENATE
       APPROVED________________________________________
                          (Date and Time)
                    _________________________________________
                   Jared S. Polis
                   GOVERNOR OF THE STATE OF COLORADO
PAGE 7-HOUSE BILL 26-1340