POLICY 2010

4 

CONCERNING PETITIONS TO THE STATE ENGINEER TO MAKE 

DETERMINATIONS OF NONTRIBUTARY GROUND WATER IN THE 

CASE OF APPLICATIONS FOR WELL PERMITS TO BE ISSUED PURSUANT 

TO SECTION 37-90-137(4), C.R.S. 

Background 

Ground water in Colorado is presumed to be "tributary," or hydraulically connected to surface 

water in such a fashion so as to require administration within the prior appropriation system in 

conjunction with surface rights.' A party seeking to withdraw tributary ground water for 

application to beneficial use must first obtain a ground water well permit from the State 

Engineer2 Because tributary ground water is administered within the prior appropriation 

system, a party applying for a well permit to withdraw ground water tributary to an 

overappropriated surface stream must first demonstrate that all depletions resulting from such 

withdrawal will be replaced pursuant to an augmentation plan or substitute water supply plan, or 

otherwise demonstrate that the well can be operated in a manner that will not cause injury to 

vested water rights. 3 

In some cases, ground water may instead be "nontributary," defined as "that ground water, 

located outside the boundaries of any designated ground water basins in existence on January 

1, 1985, the withdrawal of which will not, within one hundred years of continuous withdrawal, 

deplete the flow of a natural stream, including a natural stream as defined in sections 37-82-

101(2) and 37-92-102(1)(b), at an annual rate.greaterthan one-tenth of one percent of the 

annual rate of withdrawal."4 A party ·seeking to. withdraw nontributary ground water for beneficial 

use must obtain a well permit from :the: 'State Engineer. 5 However, under Colorado law, ground 

water that has been determined to be nontributary is not administered within the prior 

appropriation system.6 Therefore, a party seeking to obtain a ground water well permit to 

withdraw nontributary ground water is not required to obtain an augmentation plan or substitute 

1 See Simpson v. Bijou Irrigation Co., 69 P.3d 50, 57 n.7 (Colo. 2003) ("Absent a showing to the contrary, 

Colorado law presumes that (1) ground water is tributary to the stream, and (2) that where surface water 

is over-appropriated, groundwater depletions through well pumping causes material injury to senior 

appropriators"). 

2 See C.R.S. § 37-90-103(21)(a); C.R.S. § 37-90-137(1). 

3 See, e.g. Simpson v. Bijou, 69 P.3d at 60-61. 

4 See C.R.S. § 37-90-103(10.5). Water users must note that this is a unitless depletion standard and 

represents a percentage of the pumping not a volume. The Colorado Revised Statutes do not provide for 

or imply a volumetric amount of depletion that is de minimis and, therefore, indicative of nontributary 

water 

See, e.g. C.R.S. § 37-90-103(21)(a); § 37-90-137(1); § 37-90-137(4). 

6 See C.R.S. § 37-92-305(11)("Nontributary ground water shall not be administered in accordance with 

priority of appropriation"). 

Office of the State Engineer 

1313 Shennan Street, Suite 818 • Denver, CO 80203 .• Phone: 303,866-3581 • Fax: 303-866-3589 

www.water.state.co.us 

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that it is nontributary, and produced ground water that has been found to be nontributary under 

the Produced Nontributary Ground Water Rules. As a result, requests for determinations of 

nontributary groundwater typically have required case-by-case analysis. 

Historically, the State Engineer has reviewed requests for determinations of nontributary ground 

water in the context of the well permit application process. In reviewing a permit application to withdraw nontributary ground water, the State Engineer has imposed a strict requirement that 

the applicant demonstrate the subject ground water meets the objective standard set forth at 

37-90-103(10.5) through analytic or numeric modeling, or in some cases, site-specific geologic 

evidence. In the case of the "Complex Area" of the Denver Basin, the State Engineer has 

frequently considered the nontributary nature of the bedrock aquifers based only on existing well 

Jog information available in the State Engineer:s Office, without any information submitted from 

an applicant. - · · 

If the State Engineer accepted the demonstration that the subject ground water was nontributary 

ground water, the ground water was then deemed available for withdrawal pursuant to 37-90-

137(4). In arriving at the finding, the State Engineer's Office would either affirm or determine 

the saturated thickness and specific yield of the formation that is the source of the ground water. 

However, the State Engineer has not documented a formal procedure for the review of such 

nontributary determinations, other than in the context of challenges to the well permitting 

process. 

Basis for Policy 

The State Engineer believes it is now beneficial to adopt a policy that establishes a 

standardized procedure for submission and review of requests for nontributary ground water 

determinations when accompanied by an application for a well permit to be issued pursuant to 

37-90-137(4). Adoption of such a policy provides the State Engineer, water users, and other 

parties with a published procedure for submission and review of requests for nontributary 

ground water determinations. The State Engineer believes that documenting a single procedure 

for processing requests for nontributary ground water determinations will clarify the process for 

submission and review of such determinations. 

State Engineer Policy 

The State Engineer adopts this policy providing direction for requests for nontributary ground 

water determinations for the purposes of issuing well permits pursuant to 37 -90-137(4) and 37-

90-137(1 0). The provisions of this policy shall be effective on the date of signing. This policy 

shall not be applicable for the Dawson, Lower Dawson, Denver, Arapahoe, Lower Arapahoe, or 

Laramie-Fox Hills aquifers in the geographic areas identified in the Denver Basin Rules, 2 CCR 

402-6. This policy shall also not apply to determinations of nontributary ground water for the 
A party seeking a nontributar

y detedi1ination for a certain formation underlying a parcel 

of land ("Applicant") shall file a petition in the form of a letter and accompanying 

professional report to the State Engineer. The petition shall at a minimum contain the 

following: 

1. A complete well permit application demonstrating land ownership or consent of 

the landowner, 

2. Information sufficient to demonstrate, through analytic or numeric modeling, that 

the ground water in a certain formation underlying the land that is subject of the 

application meets the nontributary standard. In lieu of ground water modeling, 

the Applicant may provide geologic, hydrologic, and other information sufficient to 

demonstrate that the ground water in a certain formation underlying the land that 

is subject of the application is hydraulically disconnected from all surface streams 

such that there will be no depletions to any surface stream as a result of 

pumping, 

3. The Applicant's determination of the saturated thickness of the water yielding 

formation materials and specific yield of the saturated zones of those materials. 

B. Notice and Comment 

1. Concurrent with submission of the petition to the State Engineer, the Applicant 

shall file notice of the petition. The notice shall be sent to all parties on the 

Notification List (SWSP Notification List and the Produced Nontributary Ground 

Water Notification List or other notification list developed by the State Engineer 

specifically for this purpose) for the water division in which the subject ground 

water is located and published once each week for two successive weeks as a 

legal notice in the primary newspaper of general circulation in the affected 

watersheds. The notice and publication shall describe the formations and a legal 

description of the geographically delineated area in which the nontributary 

determination is requested, and the requirements for submitting responses to the 

petition. 

2. Persons on the Notification List shall be provided notice required pursuant to this 

policy by either first-class mail or by electronic mail, as indicated by the 

subscriber to the lists. 

3. The State Engineer shall allow 30 days after the petition has been noticed or last 

published, whichever is later, for any person to respond to the petition. A person 

must respond to the petition in writing either by submitting comments on the 

petition or by requesting that the petition be referred for hearing. The person 

must state the basis for such a request in sufficient detail to allow the State 

Engineer to determine whether· a hearing is appropriate prior to an Initial 

Determination. The Applicant or the staff of the State Engineer may also refer 
petition and any written comments, and produce an Initial Determination with 

respect to whether water withdrawn from the formation that is subject of the 

petition is nontributary. 

2. The staff of the State Engineer shall provide a copy of its Initial Determination to 

the Applicant, any person who submitted written comments, and any person who 

requested a copy of the Initial Determination. If no person objects to the Initial 

Determination within 30 days, the staff of the State Engineer will submit its Initial 

Determination to the State Engineer for review and certification as a Final 

Decision, as described below . 

. . · 

D. Hearing 

1. If any person objects to the Initial Determination, or if the State Engineer has 

determined a hearing is appropriate before an Initial Determination, the matter 

will be set for an adjudicatory hearing before the State Engineer. The person 

objecting must state in detail the basis for such an objection to the Initial 

Determination. The State Engineer may submit the matter to a designated 

Hearing Officer at his discretion. 

2. The hearing shall be conducted pursuant to the Division of Water Resources 

Procedural Regulations, 2 CCR 402-5, and applicable provisions of the State 

Administrative Procedure Act. The Applicant shall provide notice of the hearing 

to any person who responded to the petition. 

3. For purposes of the hearing, the Applicant shall be considered the party 

requesting the hearing and the proponent of the determination, and shall have 

the initial burden of proof. Any person who responded to the petition may 

participate as a party to the hearing. The staff of the State Engineer may 

participate as a party. 

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4. The State Engineer may consider the Initial Determination of the staff of the State 

Engineer as evidence; however, the hearing will be de novo, based upon the 

evidence presented at the hearing. 

E. Final Decision 

If no hearing is held, the Initial Determination shall become the Final Decision of the 

State Engineer ("Final Decision") with respect to the Applicant's petition. If there has 

been a hearing on the petition, the decision of the State Engineer shall become the Final 

Decision pursuant to procedures set forth in the Division of Water Resources Procedural 

Regulations, 2 CCR 402-5, and applicable provisions of the State Administrative 

Procedure Act. 
also rely upon the Final Decision when filing a determination as to the facts of an 

application to the water court, as required by 37 -92-302(2) from those formations within 

the geographically delineated area covered by the Final Decision. 

Except as described herein, this policy may be modified or revoked only in writing by the State 

Engineer. 

Approved this 23t}_day 2010. 

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