2023 Colorado Revised Statutes › Title 37 - WATER AND IRRIGATION (§§ 37-1-101 — 37-99-103) › WATER RIGHTS AND IRRIGATION (§§ 37-80-101 — 37-93-101) › GENERAL AND ADMINISTRATIVE (§§ 37-80-101 — 37-80-124) › Article 80 - STATE ENGINEER (§§ 37-80-101 — 37-80-124) › Section 37-80-124 - State engineer - designation of fire suppression ponds - conditional requirements - inspections - expiration of designation - database - reviews by water courts

(1)
For the purposes of section
37-82-107
, the state engineer shall:
(a)
Review applications received from boards of county commissioners concerning the designation of ponds as fire suppression ponds; and
(b)
At the state engineer's discretion, designate ponds as fire suppression ponds.
(2)
In considering whether to designate a pond as a fire suppression pond, the state engineer shall:
(a)
Consider whether the needs assessment performed for the pond pursuant to section
37-82-107 (3)(a)(II)
evaluated the criteria established by rules promulgated by the division of fire prevention and control pursuant to section
37-82-107 (5)
; and
(b)
Verify that the pond satisfies the requirements described in subsection (10)(a)(II) of this section.
(3)
The state engineer may establish a standard written or electronic form for boards of county commissioners to use to apply for the designation of a pond as a fire suppression pond.
(4)
Within one hundred fifty-four days after receiving an application to designate a fire suppression pond, the state engineer shall:
(a)
Review the application; and
(b)
At the state engineer's discretion, designate a pond as a fire suppression pond, deny the application, schedule a hearing, or request additional information.
(5)
As a condition of designating a pond as a fire suppression pond pursuant to this section, the state engineer may impose reasonable requirements on a board of county commissioners, including requirements for measuring and recording devices.
(6)
If the state engineer designates a pond as a fire suppression pond pursuant to this section, the board of county commissioners of the county in which the pond is located and the fire protection district or fire authority shall inspect the pond at least annually to ensure that:
(a)
The pond is properly maintained;
(b)
Any firefighting infrastructure associated with the pond is functional; and
(c)
The approximate surface area of the pond has not changed.
(7)
If the state engineer denies an application for the designation of a pond as a fire suppression pond, the state engineer shall provide the applicant board of county commissioners the reasons for the state engineer's denial and an opportunity to discuss the denial with the state engineer.
(8)
(a)
The designation of a pond as a fire suppression pond pursuant to this section expires fifteen years after the date of the designation.
(b)
No sooner than three hundred sixty-five days before the expiration of the designation of a pond as a fire suppression pond, the board of county commissioners of the county in which the pond is located and the fire protection district or fire authority may perform a needs assessment of the pond, as described in section
37-82-107 (3)
, if the board desires that the pond be recertified as a fire suppression pond.
(c)
If the needs assessment described in subsection (8)(b) of this section indicates that the pond continues to satisfy the criteria established by rules promulgated pursuant to section
37-82-107 (5)
, the board and the fire protection district or fire authority shall notify the state engineer of such fact, and the state engineer shall redesignate the pond as a fire suppression pond.
(d)
If the needs assessment described in subsection (8)(b) of this section indicates that the pond no longer satisfies the criteria established by rules promulgated pursuant to section
37-82-107 (5)
, the board and the fire protection district or fire authority shall either:
(I)
Notify the state engineer that the designation of the pond as a fire suppression pond should be rescinded or allowed to expire; or
(II)
Provide to the state engineer a plan and timeline for bringing the pond back into compliance with the criteria.
(9)
The state engineer shall establish a database for the administration of ponds that are designated as fire suppression ponds pursuant to this section.
(10)
(a)
Notwithstanding any provision of law to the contrary, the state engineer shall not:
(I)
Designate more than thirty total surface acres of pond in any county as a fire suppression pond; or
(II)
Designate any pond as a fire suppression pond unless:
(A)
The pond existed with the same or greater surface area as of June 1, 1972;
(B)
Decreed storage rights for the pond are limited to use within the pond and only livestock watering, wildlife, or other nonconsumptive uses;
(C)
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;
(D)
The surface area of the pond does not exceed six acres;
(E)
The board of county commissioners that requested the designation has provided notice of the request to interested parties included in the substitute water supply plan notification list established pursuant to section
37-92-308 (6)
for the water division in which the pond is located; and
(F)
The state engineer determines that evidence provided by a holder of a decreed water right in response to the notice described in subsection (10)(a)(II)(E) of this section was insufficient to rebut the presumption of no material injury, as described in section
37-92-602 (8)(i)
.
(b)
The notice described in subsection (10)(a)(II)(E) of this section must include:
(I)
The results of the needs assessment conducted for the pond pursuant to section
37-82-107 (3)(a)(II)
, including a summary of findings;
(II)
A copy of the application for designation of the pond as a fire suppression pond; and
(III)
A statement that a holder of a decreed water right has one hundred forty days after the submission of the application to provide evidence of material injury to the state engineer, as described in section
37-92-602 (8)(i)
.
(c)
In submitting an application for the designation of a pond as a fire suppression pond, a board of county commissioners must include with the application evidence that the board provided the notice described in subsection (10)(a)(II)(E) of this section.
(11)
After a board of county commissioners submits an application to the state engineer for the designation of a fire suppression pond pursuant to section
37-82-107
, a holder of a decreed water right may request that, if the state engineer designates the pond as a fire suppression pond, the state engineer shall provide notice of the designation to the holder of the decreed water right within fourteen days after the designation. If the state engineer receives such a request, the state engineer shall provide such notice.
(12)
(a)
Within seventy 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.
(b)
Upon receiving a petition described in subsection (12)(a) of this section, a water judge shall conduct a review of the state engineer's decision de novo based on the administrative record.
(c)
Notwithstanding any provision of this section to the contrary, 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:
(I)
In applying for such designation, the board of county commissioners did not describe a pond that complies with criteria established by rules promulgated by the director of the division of fire prevention and control in the department of public safety pursuant to section
37-82-107 (5)
; or
(II)
The state engineer's decision did not accord with the requirements set forth in subsection (10) of this section.
Added by 2022 Ch. 464, § 3, eff. 8/10/2022.
2022 Ch. 464, was passed without a safety clause. See Colo. Const. art. V, § 1(3).