CO Code § 37-90-105 (2021)
2021 Colorado Code|Title 37 - Water and Irrigation|Article 90 - Underground Water|§ 37-90-105. Small Capacity Wells

  The state engineer has the authority to approve permits for the following types of wells and to allow the following types of rooftop precipitation collection systems in designated groundwater basins without regard to any other provisions of this article:   Wells not exceeding fifty gallons per minute and used for no more than three single-family dwellings, including the normal operations associated with such dwellings but not including the irrigation of more than one acre of land;    Wells not exceeding fifty gallons per minute and used for watering of livestock on range and pasture;      One well not exceeding fifty gallons per minute and used in one commercial business. (c) (I) One well not exceeding fifty gallons per minute and used in one commercial business.    To qualify as a ”commercial business“ under this paragraph (c), the business shall be:   A business that will be operated by the well owner and that will have its own books, bank accounts, checking accounts, and separate tax returns;    A business that will use water solely on the land indicated in the permit for the well and for the purposes stated in such permit;    A business that will maintain its individual assets and will own or lease the property on which the well is to be located or where the business is operated;    A business that will have its own contractual agreements for operation of the business;    A business that agrees not to transfer a permit issued under this paragraph (c) to another entity that also holds a small capacity commercial well permit under this paragraph (c); and    A business that agrees to notify any potential buyer that such buyer shall notify the state engineer of any change in ownership of such business within sixty days after any such change in ownership.          Wells to be used exclusively for monitoring and observation purposes if said wells are capped and locked and used only to monitor water levels or for water quality sampling;    Wells to be used exclusively for fire-fighting purposes if said wells are capped and locked and available for use only in fighting fires; or      Any system or method of collecting precipitation from the roof of a building that is used primarily as a residence and is not served by, whether or not connected to, a domestic water system that serves more than three single-family dwellings, but only if the use of the water so collected is limited to one or more of the following: (f) (I) Any system or method of collecting precipitation from the roof of a building that is used primarily as a residence and is not served by, whether or not connected to, a domestic water system that serves more than three single-family dwellings, but only if the use of the water so collected is limited to one or more of the following:    On and after July 1, 2009, any person wishing to use a system or method of rooftop precipitation capture that meets the requirements of subparagraph (I) of this paragraph (f) shall comply with one of the following provisions:   A person who has a well permit issued or recorded pursuant to this section and who intends to use a system or method of rooftop precipitation capture that qualifies under subparagraph (I) of this paragraph (f) shall file, on a form prescribed by the state engineer and consistent with this section, a notice and description of the system or method of rooftop precipitation capture to be used in conjunction with the well. No fee shall be charged for the filing of this form.    A person who applies for a new well permit pursuant to paragraph (a) of this subsection (1) and who intends to use a system or method of rooftop precipitation capture that qualifies under subparagraph (I) of this paragraph (f) shall include on the well permit application a description of the system or method of rooftop precipitation capture to be used in conjunction with the well. An applicant under this sub-subparagraph (B) shall pay the well permit application fee pursuant to sub-subparagraph (C) of subparagraph (I) of paragraph (a) of subsection (3) of this section; however, such applicant shall not be required to pay any additional application fee for the rooftop precipitation collection system.    A person who does not intend to construct and use a well, but would otherwise be entitled to the issuance of a well permit pursuant to paragraph (a) of this subsection (1), shall submit an application in the form and manner designated by the state engineer for a permit to install and use a system or method of rooftop precipitation capture and pay a fee in an amount to be determined by the state engineer. If the state engineer determines that the proposed system or method of rooftop precipitation capture meets the requirements of this paragraph (f), the state engineer shall issue a permit for the system or method, but not otherwise. The state engineer shall enforce the provisions of the permit in the same manner as the enforcement of any well permit issued pursuant to paragraph (a) of this subsection (1).       A person using or legally entitled to use a well pursuant to paragraph (a) of this subsection (1) shall be allowed to collect rooftop precipitation pursuant to this paragraph (f) only for use by the same dwellings that are or would be served by the well and subject to all of the limitations on use contained in the well permit or, in the absence of a well permit, the well permit to which the person would be legally entitled, as determined by the state engineer or as otherwise limited by the board of a ground water management district pursuant to subsection (7) of this section.          The state engineer has the authority to adopt rules in accordance with section 24-4-103, C.R.S., to carry out the provisions of this section. Any party adversely affected or aggrieved by a rule adopted by the state engineer may seek judicial review of such action pursuant to section 24-4-106, C.R.S.          and (B) Repealed. (a) (I) (A) and (B) Repealed.       Notwithstanding the amount specified for any fee in subparagraph (I) of this paragraph (a), the commission by rule or as otherwise provided by law may reduce the amount of one or more of the fees if necessary pursuant to section 24-75-402 (3), C.R.S., to reduce the uncommitted reserves of the fund to which all or any portion of one or more of the fees is credited. After the uncommitted reserves of the fund are sufficiently reduced, the commission by rule or as otherwise provided by law may increase the amount of one or more of the fees as provided in section 24-75-402 (4), C.R.S.       Beginning on August 5, 1998, the state engineer shall not approve a permit for a small capacity well with an annual volume of use in excess of five acre-feet, unless the well is located in a ground water management district that has adopted rules that allow an annual volume in excess of five acre-feet. This limitation shall not apply to a replacement permit for a well where the original permit allows an annual volume of use in excess of five acre-feet or to a permit for a well covered by the provisions of subsection (4) of this section where the actual annual volume of use was in excess of five acre-feet.    If the application is made pursuant to this section for a well that will be located in a subdivision, as defined in section 30-28-101 (10), C.R.S., and approved on or after June 1, 1972, pursuant to article 28 of title 30, C.R.S., for which the water supply plan has not been recommended for approval by the state engineer, the cumulative effect of all such wells in the subdivision shall be considered in determining material injury, and the state engineer shall deny the application if it is determined that the proposed well will cause material injury to existing water rights.      If any person wishes to replace an existing well of the type described in subsection (1) of this section, such person shall file an application pursuant to this subsection (3) for the construction of a well and shall state in such application such person's intent to abandon the existing well that is to be replaced. (d) (I) If any person wishes to replace an existing well of the type described in subsection (1) of this section, such person shall file an application pursuant to this subsection (3) for the construction of a well and shall state in such application such person's intent to abandon the existing well that is to be replaced.    If such a replacement well will not change the amount or type of use of water that can lawfully be made by means of the existing well, a permit to construct and use the replacement well shall be issued, and the existing well shall be abandoned within ninety days after the completion of the replacement well.         Repealed. (e) (I) Repealed.    Effective July 1, 2006, wells for which permits have been granted or may be granted shall be constructed within two years after the permit is issued, which time may be extended for successive years at the discretion of the state engineer for good cause shown.              Repealed. (a) (I)Repealed.    Effective July 1, 2006, any wells of the type described by this section that were put to beneficial use prior to May 8, 1972, and any wells that were used exclusively for monitoring and observation purposes prior to August 1, 1988, not of record in the office of the state engineer, may be recorded in that office upon written application, payment of a processing fee of one hundred dollars, and permit approval. The record shall include the date the water is claimed to have been first put to beneficial use.       Any owner of an existing well that was constructed prior to May 8, 1972, or has a well permit issued prior to January 1, 1996, under the provisions of this section, and that was put to beneficial use for watering livestock in a confined animal-feeding operation prior to January 1, 1996, and has been used for that purpose, may apply by December 31, 1999, to obtain a new permit for that well up to the extent of its beneficial use prior to January 1, 1996, for watering livestock in that commercial business pursuant to paragraph (c) of subsection (1) of this section. Such well shall be in addition to the one commercial business well allowed in paragraph (c) of subsection (1) of this section. Such an application shall include a sixty dollar filing fee and shall provide documentation of the annual volume of water put to beneficial use from the well. The state engineer shall have the authority to determine the adequacy of the submitted information for the purpose of approving completely, approving in part, or denying the application. Permits issued after January 1, 1996, up to August 5, 1998, shall remain valid thereafter according to the terms and conditions of those permits.       The state engineer shall act upon an application filed under this section within forty-five days after such filing and shall support the ruling with a written statement of the basis therefor.      Any person aggrieved by a decision of the state engineer granting or denying an application under this section may request a hearing before the state engineer pursuant to section 24-4-104, C.R.S. The state engineer may, in the state engineer's discretion, have such hearings conducted before such agent as it may designate for a ruling in the matter. Any party who seeks to reverse or modify the ruling of the agent of the state engineer may file an appeal to the state engineer pursuant to section 24-4-105, C.R.S.    Any party aggrieved by a final decision of the state engineer granting or denying an application filed under this section may within thirty days after such decision file a petition for review with the district court in the county in which the well is located. Upon receipt of such petition, the designated groundwater judge for the basin in which the well is located shall conduct such hearings, pursuant to section 24-4-106, C.R.S., as necessary to determine whether or not the decision of the state engineer shall be upheld. In any case in which the state engineer's decision is reversed, the judge shall order the state engineer to grant or deny the application, as such reversal may require, and may specify such terms and conditions as are appropriate.         The board of a ground water management district may adopt rules that further restrict the issuance of small capacity well permits and use of rooftop precipitation collection systems or graywater treatment works. In addition, the board of a ground water management district may adopt rules that expand the acre-foot limitations for small capacity wells set forth in this section. However, the board of a ground water management district shall not allow an annual volume of more than eighty acre-feet for any small capacity well.    The board may institute its rules only after a public hearing. The board shall publish notice of the hearing, stating the time and place of the hearing and describing, in general terms, the rules proposed. Within sixty days after the hearing, the board shall announce the rules adopted and shall publish notice of the action. In addition, the board shall mail, within five days after the adoption of the rules, a copy of the rules to the state engineer.    Any party adversely affected or aggrieved by a rule may, not later than thirty days after the last date of publication, initiate judicial review in accordance with section 24-4-106, C.R.S.; except that venue for judicial review of the rule must be in the district court for the county in which the office of the ground water management district is located.       A person withdrawing water from a well pursuant to paragraph   or (c) of subsection (1) of this section may use graywater through use of a graywater treatment works, as those terms are defined in section 25-8-103 (8.3) and (8.4), C.R.S., in compliance with the requirements of section 25-8-205 (1)(g), C.R.S. Any limitations on use set forth in the well permit apply to the use of graywater.        (A) Ordinary household purposes;   (B) Fire protection;   (C) The watering of poultry, domestic animals, and livestock on farms and ranches; or   (D) The irrigation of not more than one acre of gardens and lawns.   (C) Effective July 1, 2006, wells of the type described in this section may be constructed only upon the issuance of a permit in accordance with the provisions of this section. A fee of one hundred dollars shall accompany any application for a new well permit under this section. A fee of sixty dollars shall accompany any application for a replacement well of the type described in subsection (1) of this section.   History. Source: L. 65: R&RE, p. 1249, § 1. C.R.S. 1963: § 148-18-4. L. 67: P. 276, § 3. L. 71: R&RE, p. 1312, § 2. L. 85: (1)(c) amended, p. 1172, § 1, effective May 31. L. 87: (2) amended and (3) added, p. 1301, § 3, effective July 2. L. 92: (1)(b) and (1)(c) amended and (1)(d) added, p. 2297, § 2, effective March 19. L. 98: (3)(a) amended, p. 1343, § 70, effective June 1; entire section amended, p. 1213, § 4, effective August 5. L. 2003: (3)(a)(I), (3)(e), and (4)(a) amended, p. 43, § 3, effective (see editor's note); (3)(a)(I)(A), (3)(a)(I)(C), (4)(a)(I)(A), and (4)(a)(II) amended, p. 1683, § 14, effective May 14. L. 2009: IP(1), (1)(d), (1)(e), and (7) amended and (1)(f) added,(SB 09-080), ch. 179, p. 789, § 2, effective July 1. L. 2013: (7) amended and (8) added,(HB 13-1044), ch. 228, p. 1090, § 6, effective May 15. History. Source: L. 65: R&RE, p. 1249, § 1. C.R.S. 1963: § 148-18-4. L. 67: P. 276, § 3. L. 71: R&RE, p. 1312, § 2. L. 85: (1)(c) amended, p. 1172, § 1, effective May 31. L. 87: (2) amended and (3) added, p. 1301, § 3, effective July 2. L. 92: (1)(b) and (1)(c) amended and (1)(d) added, p. 2297, § 2, effective March 19. L. 98: (3)(a) amended, p. 1343, § 70, effective June 1; entire section amended, p. 1213, § 4, effective August 5. L. 2003: (3)(a)(I), (3)(e), and (4)(a) amended, p. 43, § 3, effective (see editor's note); (3)(a)(I)(A), (3)(a)(I)(C), (4)(a)(I)(A), and (4)(a)(II) amended, p. 1683, § 14, effective May 14. L. 2009: IP(1), (1)(d), (1)(e), and (7) amended and (1)(f) added,(SB 09-080), ch. 179, p. 789, § 2, effective July 1. L. 2013: (7) amended and (8) added,(HB 13-1044), ch. 228, p. 1090, § 6, effective May 15.    Editor's note:    Senate Bill 98-194 was harmonized with House Bill 98-1151 resulting in the renumbering of subsection (2) in Senate Bill 98-194 to subsection (3)(a).    Section 10 of chapter 7, Session Laws of Colorado 2003, provides for an effective date of March 1, 2003; however, the Governor did not sign the act until March 5, 2003.    Subsection (3)(a)(I)(B) provided for the repeal of subsections (3)(a)(I)(A) and (3)(a)(I)(B), subsection (3)(e)(I)(B) provided for the repeal of subsection (3)(e)(I), and subsection (4)(a)(I)(B) provided for the repeal of subsection (4)(a)(I), effective July 1, 2006. (SeeL. 2003, p. 43.)     Cross references:   For the legislative declaration contained in the 2003 act amending subsections (3)(a)(I), (3)(e), and (4)(a), see section 1 of chapter 7, Session Laws of Colorado 2003. For the legislative declaration in the 2013 act amending subsection (7) and adding subsection (8), see section 1 of chapter 228, Session Laws of Colorado 2013.   ANNOTATION   The ”quantity of existing claims“ which must be considered by the ground water commission is the sum of all water rights which have been appropriated and those water rights which are in the process of being appropriated under conditional permits. Thompson v. Colo. Ground Water Comm'n, 194 Colo. 489 , 575 P.2d 372 (1978).   Judgment upheld designating area as ground water basin. Hayes v. State, 178 Colo. 447 , 498 P.2d 1119 (1972).