CO Code § 37-90-107 (2021)
2021 Colorado Code|Title 37 - Water and Irrigation|Article 90 - Underground Water|§ 37-90-107. Application for Use of Groundwater - Publication of Notice - Conditional Permit - Hearing on Objections - Well Permits

  Any person desiring to appropriate groundwater for a beneficial use in a designated groundwater basin shall make application to the commission in a form to be prescribed by the commission. The applicant shall specify the particular designated groundwater basin or subdivision thereof from which water is proposed to be appropriated, the beneficial use to which it is proposed to apply such water, the location of the proposed well, the name of the owner of the land on which such well will be located, the estimated average annual amount of water applied for in acre-feet, the estimated maximum pumping rate in gallons per minute, and, if the proposed use is irrigation, the description of the land to be irrigated and the name of the owner thereof, together with such other reasonable information as the commission may designate on the form prescribed. The amount of water applied for shall only be utilized on the land designated on the application. The place of use shall not be changed without first obtaining authorization from the ground water commission.    Upon the filing of such application, a preliminary evaluation shall be made to determine if the application may be granted. If the application can be given favorable consideration by the ground water commission under existing policies, then, within thirty days, the application shall be published.    After the expiration of the time for filing objections, if no such objections have been filed, the commission shall, if it finds that the proposed appropriation will not unreasonably impair existing water rights from the same source and will not create unreasonable waste, grant the said application, and the state engineer shall issue a conditional permit to the applicant within forty-five days after the expiration of the time for filing objections or within forty-five days after the hearing provided for in subsection (4) of this section to appropriate all or a part of the waters applied for, subject to such reasonable conditions and limitations as the commission may specify.    If objections have been filed within the time in said notice specified, the commission shall set a date for a hearing on the application and the objections thereto and shall notify the applicants and the objectors of the time and place. Such hearing shall be held in the designated groundwater basin and within the district, if one exists, in which the proposed well will be located or at such other place as may be designated by the commission for the convenience of, and as agreed to by, the parties involved. If after such hearing it appears that there are no unappropriated waters in the designated source or that the proposed appropriation would unreasonably impair existing water rights from such source or would create unreasonable waste, the application shall be denied; otherwise, it shall be granted in accordance with subsection (3) of this section. The commission shall consider all evidence presented at the hearing and all other matters set forth in this section in determining whether the application should be denied or granted.    In ascertaining whether a proposed use will create unreasonable waste or unreasonably affect the rights of other appropriators, the commission shall take into consideration the area and geologic conditions, the average annual yield and recharge rate of the appropriate water supply, the priority and quantity of existing claims of all persons to use the water, the proposed method of use, and all other matters appropriate to such questions. With regard to whether a proposed use will impair uses under existing water rights, impairment shall include the unreasonable lowering of the water level, or the unreasonable deterioration of water quality, beyond reasonable economic limits of withdrawal or use. If an application for a well permit cannot otherwise be granted pursuant to this section, a well permit may be issued upon approval by the ground water commission of a replacement plan that meets the requirements of this article and the rules adopted by the commission. A replacement plan shall not be used as a vehicle for avoiding limitations on existing wells, including but not limited to restrictions on change of well location. Therefore, before approving any replacement plan that includes existing wells, the commission shall require independent compliance with all rules governing those existing wells in addition to compliance with any guidelines or rules governing replacement plans. (5.5) A person withdrawing water from a well pursuant to subsection (3) 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, or in the provisions of any approved replacement plan, apply to the use of graywater.        A person shall not, in connection with the extraction of sand and gravel by open mining, as defined in section 34-32.5-103 (15), expose designated groundwater to the atmosphere unless the person has obtained a well permit from the ground water commission. If an application for such a well permit cannot otherwise be granted pursuant to this section, a well permit shall be issued upon approval by the ground water commission of a replacement plan that meets the requirements of this article 90, pursuant to the guidelines or rules adopted by the commission. The well permit and replacement plan may authorize uses of water incidental to open mining for sand and gravel, including processing and washing mined materials; dust suppression; mined land reclamation including temporary irrigation for revegetation; liner or slurry wall construction; production of concrete and other aggregate-based construction materials; dewatering; and mitigation of impacts from mining and dewatering. (a) (I)A person shall not, in connection with the extraction of sand and gravel by open mining, as defined in section 34-32.5-103 (15), expose designated groundwater to the atmosphere unless the person has obtained a well permit from the ground water commission. If an application for such a well permit cannot otherwise be granted pursuant to this section, a well permit shall be issued upon approval by the ground water commission of a replacement plan that meets the requirements of this article 90, pursuant to the guidelines or rules adopted by the commission. The well permit and replacement plan may authorize uses of water incidental to open mining for sand and gravel, including processing and washing mined materials; dust suppression; mined land reclamation including temporary irrigation for revegetation; liner or slurry wall construction; production of concrete and other aggregate-based construction materials; dewatering; and mitigation of impacts from mining and dewatering.    Any person who extracted sand and gravel by open mining and exposed groundwater to the atmosphere after December 31, 1980, shall apply for a well permit pursuant to this section and, if applicable, shall submit a replacement plan prior to July 15, 1990.       If any designated groundwater was exposed to the atmosphere in connection with the extraction of sand and gravel by open mining as defined in section 34-32-103 (9), C.R.S., prior to January 1, 1981, no such well permit or replacement plan shall be required to replace depletions from evaporation; except that the burden of proving that such designated groundwater was exposed prior to January 1, 1981, shall be upon the party claiming the benefit of this exception.    Any person who has reactivated or reactivates open mining operations which exposed designated groundwater to the atmosphere but which ceased activity prior to January 1, 1981, shall obtain a well permit and shall apply for approval of a replacement plan or a plan of substitute supply pursuant to paragraph (a) of this subsection (6).    In addition to the well permit filing fee required by section 37-90-116, the commission shall collect the following fees for exposing groundwater to the atmosphere for the extraction of sand and gravel by open mining:   For persons who exposed groundwater to the atmosphere on or after January 1, 1981, but prior to July 15, 1989, one thousand five hundred ninety-three dollars; except that, if such plan is filed prior to July 15, 1990, as required by subparagraph (II) of paragraph (a) of this subsection (6), the filing fee shall be seventy dollars if such plan includes ten acres or less of exposed groundwater surface area or three hundred fifty dollars if such plan includes more than ten acres of exposed groundwater surface area;    For persons who expose groundwater to the atmosphere on or after July 15, 1989, one thousand five hundred ninety-three dollars regardless of the number of acres exposed. In the case of new mining operations, such fee shall cover two years of operation of the plan.    For persons who reactivated or who reactivate mining operations that ceased activity prior to January 1, 1981, and who enlarge the surface area of any gravel pit lake beyond the area it covered before the cessation of activity, one thousand five hundred ninety-three dollars;    For persons who request renewal of an approved substitute water supply plan prior to the expiration date of the plan, two hundred fifty-seven dollars regardless of the number of acres exposed;    For persons whose approved substitute water supply plan has expired and who submit a subsequent plan, one thousand five hundred ninety-three dollars regardless of the number of acres exposed. An approved plan shall be considered expired if the applicant has not applied for renewal before the expiration date of the plan. The state engineer shall notify the applicant in writing if the plan is considered expired.    For persons whose proposed substitute water supply plan was disapproved and who submit a subsequent plan, one thousand five hundred ninety-three dollars regardless of the number of acres exposed. The state engineer shall notify the applicant in writing of disapproval of a plan.       Excluding the well permit filing fee required by section 37-90-116 (2), the state treasurer shall credit all fees collected with a replacement plan to the water resources cash fund created in section 37-80-111.7 (1).    A person who has obtained a reclamation permit pursuant to section 34-32-112, C.R.S., shall be allowed to apply for a single well permit and to submit a single replacement plan for the entire acreage covered by the reclamation plan without regard to the number of gravel pit lakes located within such acreage.    Notwithstanding the amount specified for any fee in paragraph (d) of this subsection (6), 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.         The commission shall allocate, upon the basis of the ownership of the overlying land, any designated groundwater contained in the Dawson, Denver, Arapahoe, or Laramie-Fox Hills aquifers. Permits issued pursuant to this subsection (7) shall allow withdrawals on the basis of an aquifer life of one hundred years. The commission shall adopt the necessary rules to carry out the provisions of this subsection (7).    Any right to the use of groundwater entitling its owner or user to construct a well, which right was initiated prior to November 19, 1973, as evidenced by a current decree, well registration statement, or an unexpired well permit issued prior to November 19, 1973, shall not be subject to the provisions of paragraph (a) of this subsection (7).        and (B) Repealed. (c) (I) (A) and (B) Repealed.       The publication and hearing requirements of this section shall also apply to an application for determination of water rights pursuant to this subsection (7).    Any such commission approved determination shall be considered a final determination of the amount of groundwater so determined; except that the commission shall retain jurisdiction for subsequent adjustment of such amount to conform to the actual local aquifer characteristics from adequate information obtained from well drilling or test holes.           and (B) Repealed. (d) (I) (A) and (B) Repealed.       A well permit shall not be granted unless a determination of groundwater to be withdrawn by the well has been made pursuant to paragraph (c) of this subsection (7).    The application for a well permit shall also include a replacement plan if one is required under commission rules to replace any depletions to alluvial aquifers caused due to withdrawal of groundwater from the Dawson, Denver, Arapahoe, or Laramie-Fox Hills aquifers and the required plan has not been approved pursuant to paragraph (c) of this subsection (7). The publication and hearing requirements of this section shall apply to an application for such a replacement plan.    The annual amount of withdrawal allowed in any well permits issued under this subsection (7) shall be less than or equal to the amount determined pursuant to paragraph (c) of this subsection (7) and may, if so provided by any such determination, provide for the subsequent adjustment of such amount to conform to the actual aquifer characteristics encountered upon drilling of the well or test holes.          The commission shall have the exclusive authority to issue or deny well permits under this section. The commission shall consider any recommendation by ground water management districts concerning well permit applications under this section.     (C) Effective July 1, 2006, rights to designated groundwater in the Dawson, Denver, Arapahoe, or Laramie-Fox Hills aquifers to be allocated pursuant to paragraph (a) of this subsection (7) may be determined in accordance with the provisions of this section. Any person desiring to obtain such a determination shall make application to the commission in a form to be prescribed by the commission. A fee of sixty dollars shall be submitted with the application for each aquifer, which sum shall not be refunded. The application may also include a request for approval of a replacement plan if one is required under commission rules to replace any depletions to alluvial aquifers caused due to withdrawal of groundwater from the Dawson, Denver, Arapahoe, or Laramie-Fox Hills aquifers.   (C) Effective July 1, 2006, any person desiring a permit for a well to withdraw groundwater for a beneficial use from the Dawson, Denver, Arapahoe, or Laramie-Fox Hills aquifers shall make application to the commission on a form to be prescribed by the commission. A fee of one hundred dollars shall be submitted with the application, which sum shall not be refunded.   History. Source: L. 65: R&RE, p. 1250, § 1. C.R.S. 1963: § 148-18-6. L. 71: P. 1313, § 5. L. 79: (4) amended, p. 1371, § 1, effective June 7. L. 87: (3) amended, p. 1301, § 4, effective July 2. L. 89: (6) added, p. 1424, § 3, effective July 15. L. 93: (6)(c) and (6)(d) amended, p. 1832, § 2, effective June 6. L. 98: (6)(g) added, p. 1343, § 71, effective June 1; (5) amended and (7) and (8) added, p. 1216, § 5, effective August 5. L. 2003: (7)(c)(I) and (7)(d)(I) amended, p. 44, § 4, effective (see editor's note); (7)(d)(I)(A) and (7)(d)(I)(C) amended, p. 1683, § 15, effective May 14. L. 2006: (6)(d) amended, p. 1270, § 1, effective July 1. L. 2012: (6)(e) amended,(SB 12-009), ch. 197, p. 792, § 7, effective July 1. L. 2013: (5.5) added,(HB 13-1044), ch. 228, p. 1090, § 7, effective May 15. L. 2018: (6)(a)(I) amended,(SB 18-041), ch. 9, p. 157, § 1, effective August 8. History. Source: L. 65: R&RE, p. 1250, § 1. C.R.S. 1963: § 148-18-6. L. 71: P. 1313, § 5. L. 79: (4) amended, p. 1371, § 1, effective June 7. L. 87: (3) amended, p. 1301, § 4, effective July 2. L. 89: (6) added, p. 1424, § 3, effective July 15. L. 93: (6)(c) and (6)(d) amended, p. 1832, § 2, effective June 6. L. 98: (6)(g) added, p. 1343, § 71, effective June 1; (5) amended and (7) and (8) added, p. 1216, § 5, effective August 5. L. 2003: (7)(c)(I) and (7)(d)(I) amended, p. 44, § 4, effective (see editor's note); (7)(d)(I)(A) and (7)(d)(I)(C) amended, p. 1683, § 15, effective May 14. L. 2006: (6)(d) amended, p. 1270, § 1, effective July 1. L. 2012: (6)(e) amended,(SB 12-009), ch. 197, p. 792, § 7, effective July 1. L. 2013: (5.5) added,(HB 13-1044), ch. 228, p. 1090, § 7, effective May 15. L. 2018: (6)(a)(I) amended,(SB 18-041), ch. 9, p. 157, § 1, effective August 8.    Editor's note:    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 (7)(c)(I)(B) provided for the repeal of subsections (7)(c)(I)(A) and (7)(c)(I)(B) and subsection (7)(d)(I)(B) provided for the repeal of subsections (7)(d)(I)(A) and (7)(d)(I)(B), effective July 1, 2006. (SeeL. 2003, p. 44.)     Cross references:   For the legislative declaration contained in the 2003 act amending subsections (7)(c)(I) and (7)(d)(I), see section 1 of chapter 7, Session Laws of Colorado 2003. For the legislative declaration in the 2013 act adding subsection (5.5), see section 1 of chapter 228, Session Laws of Colorado 2013.   ANNOTATION   Law reviews. For comment on determining the priority of federal reserved rights relative to the water rights of state appropriators, see 48 U. Colo. L. Rev. 547 (1977). For article, ”The Effect of Water Law on the Development of Oil Shale“, see 58 Den. L.J. 751 (1981). For article, ”Ground Water Mining Law and Policy“, see 53 U. Colo. L. Rev. 505 (1982). For article, ”The Physical Solution in Western Water Law“, see 57 U. Colo. L. Rev. 445 (1986). For article, ”Use of Colorado Water Rights In Secured Transactions“, see 18 Colo. Law 2307 (1989). For article, ”A Guide to Colorado Sand and Gravel Permitting“, 49 Colo. Law. 26 (May 2020).   Subsection (7) does not violate article XVI, sections 5 and 6, of the Colorado Constitution because the doctrine of prior appropriation does not apply to the allocation and administration of designated ground water located within the Denver basin aquifers. Colo. Ground Water Comm'n v. N. Kiowa-Bijou Groundwater Mgmt. Dist., 77 P.3d 62 (Colo. 2003).   The statute establishes a ground water commission, which in turn establishes boundaries of ground water basins. Larrick v. District Court, 177 Colo. 237 , 493 P.2d 647 (1972).   Applications for appropriating designated ground water committed to commission's jurisdiction. Applications for the appropriation of designated ground water to a beneficial use are committed to the jurisdiction of the ground water commission. State ex rel. Danielson v. Vickroy, 627 P.2d 752 (Colo. 1981).   Although designated ground water in the Denver basin aquifers is allocated on the basis of overlying land ownership, in the manner of nontributary ground water, it is regulated by the state ground water commission, which has the dual responsibility of determining availability and issuing permits for its withdrawal. E. Cherry Creek Water & Sanitation Dist. v. Rangeview Metro. Dist., 109 P.3d 154 (Colo. 2005).   Water not within definition of ”designated ground water“. An application for an initial appropriation of ground water, even if not within the definition of ”designated ground water“, in a designated ground water basin must be addressed to the ground water commission. State ex rel. Danielson v. Vickroy, 627 P.2d 752 (Colo. 1981).   Holders of permits may not claim the maximum and beneficially use only a portion. Holders of conditional permits may not claim the maximum amount permitted under their permits and yet place only a portion of the claimed water to beneficial use. Peterson v. Ground Water Comm'n, 195 Colo. 508 , 579 P.2d 629 (1978).   A threshold showing of a non-speculative, beneficial use is required for designated ground water. This showing is prior even to a determination of availability by the commission. E. Cherry Creek Water & Sanitation Dist. v. Rangeview Metro. Dist., 109 P.3d 154 (Colo. 2005).   Ground water commission must consider appropriative intent among the evidence and all other matters which it must consider in acting upon an application for appropriating designated ground water. Jaeger v. Colo. Ground Water Comm'n, 746 P.2d 515 (Colo. 1987).   Under this section the commission is empowered to deny an application if it finds that the proposed appropriation will unreasonably impair existing water rights from the same source, or will create unreasonable waste. Fundingsland v. Colo. Ground Water Comm'n, 171 Colo. 487 , 468 P.2d 835 (1970).   Appropriators of the designated ground waters are required to obtain a permit for their appropriations and the act establishes a system of prior appropriation, similar in operation to the system regulating surface water rights, to regulate the water rights of the ground water users. North Kiowa-Bijou Mgt. Dist. v. Ground Water Comm'n, 180 Colo. 314 , 505 P.2d 377 (1973).   Priority of claims for appropriating ground water determined by modified prior appropriation doctrine. The priority of claims for the appropriation of designated ground water is to be determined by the doctrine of prior appropriation, as modified to permit full economic development of the designated ground water resources. State ex rel. Danielson v. Vickroy, 627 P.2d 752 (Colo. 1981).   Under the circumstances of this case, a so-called three-mile test provided a reasonable basis for assessing the effect of a proposed use on other users in the district. Fundingsland v. Colo. Ground Water Comm'n, 171 Colo. 487 , 468 P.2d 835 (1970).   The three-mile test was developed for use in the northern high plains; it is partly based on policy and partly based on fact and theory, and when using that test, a circle with a three-mile radius is drawn around the proposed well site, a rate of pumping is determined which would result in a 40 percent depletion of the available ground water in that area over a period of 25 years, and if that rate of pumping is being exceeded by the existing wells within the circle, then the application for a permit to drill a new well may be denied. Fundingsland v. Colo. Ground Water Comm'n, 171 Colo. 487 , 468 P.2d 835 (1970).   The three-mile test takes into account the factors specified by this section. Fundingsland v. Colo. Ground Water Comm'n, 171 Colo. 487 , 468 P.2d 835 (1970).   Amount of water applied for shall only be utilized on land designated on application and, the place of use shall not be changed without first obtaining authorization from the ground water commission. W-Y Ground Water Mgt. Dist. v. Goeglein, 196 Colo. 230 , 585 P.2d 910 (1978).   No change in diversion point or place of use to detriment of others. An appropriator cannot change the point of diversion or the place of use if the change increases the amount of water or the historical use to the detriment of other appropriators. Danielson v. Kerbs AG., Inc., 646 P.2d 363 (Colo. 1982).   A change in the place of use of a water right may be allowed only when the change will not cause unreasonable harm to a prior appropriator. Danielson v. Kerbs AG., Inc., 646 P.2d 363 (Colo. 1982).   An appropriation made for the irrigation of a particular tract of land cannot be used to irrigate additional lands if the expanded use will injure the rights of other appropriators. Danielson v. Kerbs AG., Inc., 646 P.2d 363 (Colo. 1982).   No change in amount. Consumptive use of water may not be increased to the injury of other appropriators. Danielson v. Kerbs AG., Inc., 646 P.2d 363 (Colo. 1982).   Burden of proof on applicant to show noninjury. The burden of proof to establish that a change of use will not injure the rights of other users from the same source rests upon the person seeking the change. Danielson v. Kerbs AG., Inc., 646 P.2d 363 (Colo. 1982).   Where expansion of use is the injury asserted, establishment of no increase in historical use is the burden of the applicant, and the use of water on increased acreage is evidence of increased use either in volume or time. Danielson v. Kerbs AG., Inc., 646 P.2d 363 (Colo. 1982).   Grant of change of place of use discretionary. This section vests the ground water commission with discretion to grant, but does not mandate, a change of place of use. W-Y Ground Water Mgt. Dist. v. Goeglein, 196 Colo. 230 , 585 P.2d 910 (1978).   Relief involving taking ground water sought first under ground water provisions. It is appropriate, as a matter of policy, and is consistent with legislative intent, to require that any relief sought which involves the taking of ground water in a designated ground water basin must be sought first through the administrative and judicial channels, as appropriate, prescribed for resolution of questions arising under this article. State ex rel. Danielson v. Vickroy, 627 P.2d 752 (Colo. 1981).   Vickroy decision not retrospectively applied. State ex rel. Danielson v. Vickroy (627 P.2d 752 (Colo. 1981)) should not be retrospectively applied to those decrees involving well permits in designated ground water basins issued prior to the Vickroy decision. Ground Water Comm'n v. Shanks, 658 P.2d 847 (Colo. 1983).   With respect to issuing permits and promulgating regulations, the act makes available to affected water users the procedures providing for notice, hearing, and review of the commission and the management district measures. Jackson v. Colo., 294 F. Supp. 1065 (D. Colo. 1968 ).   Subsection (7) vests the Colorado ground water commission with the authority to determine a use of right for the withdrawal of Denver basin designated ground water by overlying landowners, or those acting with landowner consent, whose land lies within the boundaries of a designated ground water basin that is located in the Denver basin. Colo. Ground Water Comm'n v. N. Kiowa-Bijou Groundwater Mgmt. Dist., 77 P.3d 62 (Colo. 2003).   The ground water management districts do not possess statutory authority to determine an applicant's water use right under subsection (7). The district's regulatory authority begins once a permit has been issued, therefore, an applicant seeking the Colorado ground water commission's determination of its use right need not initially submit its application to the water district for approval. Colo. Ground Water Comm'n v. N. Kiowa-Bijou Groundwater Mgmt. Dist., 77 P.3d 62 (Colo. 2003).   The anti-speculation doctrine applies to the Colorado ground water commission's determination of an applicant's right to use designated ground water in the Denver basin, therefore, an applicant must establish a threshold showing that there exists a beneficial, non-speculative use for the amount of allocated designated Denver basin ground water that will not create unreasonable waste. Colo. Ground Water Comm'n v. N. Kiowa-Bijou Groundwater Mgmt. Dist., 77 P.3d 62 (Colo. 2003).   Applied in Thompson v. Colo. Ground Water Comm'n, 194 Colo. 489 , 575 P.2d 372 (1978); Cherokee Water Dist. v. State, Ground Water Comm'n, 196 Colo. 192 , 585 P.2d 586 (1978); Pioneer Irrigation Dists. v. Danielson, 658 P.2d 842 (Colo. 1983); State Dept. of Natural Res. v. Southwestern Colo. Water Conservation Dist., 671 P.2d 1294 (Colo. 1983), cert. denied, 466 U.S. 944, 104 S. Ct. 1929, 80 L. Ed. 2d 474 (1984).