Fire Suppression Ponds Water Rights
The act allows a board of county commissioners (board), in consultation with its fire protection district or fire authority, 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 or fire authorities, 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 or fire authority, 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.
The act prohibits the state engineer, with exceptions, from 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 act, and until the date upon which the director promulgates rules.
The state engineer may 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 satisfies certain requirements and the board that requested the designation 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. The state engineer may impose reasonable requirements on a board as a condition of designating a pond as a fire suppression pond, including requirements for measuring and recording devices. A board and its fire protection district or fire authority must inspect a designated fire suppression pond at least annually.
The designation of a pond as a fire suppression pond expires 15 years after the date of the designation. Before the expiration, the board and the fire protection district or fire authority 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 or fire authority 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 or fire authority 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.
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 the 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 act concerning fire suppression ponds.
The act 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.
The act states that 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.
The act 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 to be reappropriated to the department of law for the provision of legal services; and
- $7,600 to be reappropriated to the office of information technology for the provision of information technology services.
(Note: This summary applies to this bill as enacted.)