CO Code § 37-90-111 (2021)
2021 Colorado Code|Title 37 - Water and Irrigation|Article 90 - Underground Water|§ 37-90-111. Powers of the Ground Water Commission - Limitations

  In the administration and enforcement of this article and in the effectuation of the policy of this state to conserve its designated groundwater resources and for the protection of vested rights and except to the extent that similar authority is vested in ground water management districts pursuant to section 37-90-130 (2), the ground water commission is empowered:   To supervise and control the exercise and administration of all rights acquired to the use of designated groundwater. In the exercise of this power it may, by summary order, prohibit or limit withdrawal of water from any well during any period that it determines that such withdrawal of water from said well would cause unreasonable injury to prior appropriators; except that nothing in this article shall be construed as entitling any prior designated groundwater appropriator to the maintenance of the historic water level or any other level below which water still can be economically extracted when the total economic pattern of the particular designated groundwater basin is considered; and further except that no such order shall take effect until six months after its entry.    To establish a reasonable groundwater pumping level in an area having a common designated groundwater supply. Water in wells shall not be deemed available to fill the water right therefor if withdrawal therefrom of the amount called for by such right would, contrary to the declared policy of this article, unreasonably affect any prior water right or result in withdrawing the groundwater supply at a rate materially in excess of the reasonably anticipated average rate of future recharge.    To issue permits for the construction of replacement wells. Any permits issued shall set forth the conditions under which a well may be modified by a change of the well itself or the pumping equipment therefor, by the drilling of a replacement well, or otherwise, in order to make it possible for the owner of a well to obtain the water to which such owner may be entitled by virtue of his original appropriation.    In the exercise of any of the powers or duties conferred by this section, to confer and consult with the board of directors of the ground water management district board in the affected area, if any such board exists, before promulgating any orders or regulations which would affect the district in general;    To order the total or partial discontinuance of any diversion within a groundwater basin to the extent the water being diverted is not necessary for application to a beneficial use;    In any area where a ground water management district has not been formed, to prescribe satisfactory and economical measuring methods for the measurement of water levels in and the amount of water withdrawn from wells and to require reports to be made at the end of each pumping season showing the date and water level at the beginning of the pumping season, the date and water level at the end of the pumping season, and showing any period of more than thirty days' cessation of pumping during such pumping season;    Upon application therefor by any permit holder, to authorize a change in acreage served, volume of appropriation, place, time, or type of use of and by any water right, or of any well location, either conditional or final, granted under the authority of the commission but only upon such terms and conditions as will not cause material injury to the vested rights of other appropriators. No such change that increases the volume of appropriation beyond that authorized by the original decree, conditional permit, registration statement, or other well permit issued prior to basin designation shall be authorized, and no such change shall be approved until after publication of such application as provided in section 37-90-112; except that publication shall not be required to approve a temporary change pursuant to the rules adopted by the commission and except that publication shall not be required for replacement wells that are relocated no further than the maximum distance allowed by district rules and regulations without prior board approval or by commission policy where no district exists or where no district rule has been adopted.    To adopt rules necessary to carry out the provisions of this article.       No supplemental wells or alternate point of diversion wells shall be allowed in any area of any designated groundwater basin in which the proposed well or wells combined would deplete the aquifer in excess of the rate of depletion prescribed by the ground water commission or by the ground water management district rules and regulations.    In the exercise of any of the powers or duties conferred by this section, the commission shall confer and consult with the board of directors of the ground water management district board in the affected areas, if any such board exists, before promulgating any orders or regulations which would affect the district in general, and shall request written recommendations from the board of any existing district within which the conditional or final permit has been issued, before taking final action on any request or application made pursuant to this section.    In any area within a designated groundwater basin which has not been included within the boundaries of a ground water management district, the commission has the authority to exercise any power given by this article to the board of directors of a ground water management district, but, before instituting control measures pursuant to section 37-90-130, the commission shall follow the procedures set out in section 37-90-131.    Notwithstanding any other provision of this article, the commission shall allocate, upon the basis of 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 (5) shall allow withdrawals on the basis of an aquifer life of one hundred years.     History. Source: L. 65: R&RE, p. 1254, § 1. C.R.S. 1963: § 148-18-10. L. 67: P. 276, § 4. L. 71: P. 1314, § 8. L. 79: IP(1) amended and (1)(g), (3), and (4) added, pp. 1373, 1374, §§ 4, 5, effective June 7. L. 85: (1)(g) and (3) amended, p. 1175, § 5, effective May 31. L. 88: (5) added, p. 1238, § 1, effective July 1. L. 92: (1)(c) amended, p. 2299, § 4, effective March 19. L. 94: (1)(h) added, p. 1747, § 3, effective July 1. L. 98: (1)(g) amended, p. 1220, § 9, effective August 5. History. Source: L. 65: R&RE, p. 1254, § 1. C.R.S. 1963: § 148-18-10. L. 67: P. 276, § 4. L. 71: P. 1314, § 8. L. 79: IP(1) amended and (1)(g), (3), and (4) added, pp. 1373, 1374, §§ 4, 5, effective June 7. L. 85: (1)(g) and (3) amended, p. 1175, § 5, effective May 31. L. 88: (5) added, p. 1238, § 1, effective July 1. L. 92: (1)(c) amended, p. 2299, § 4, effective March 19. L. 94: (1)(h) added, p. 1747, § 3, effective July 1. L. 98: (1)(g) amended, p. 1220, § 9, effective August 5.    ANNOTATION   Law reviews. For article, ”Principles and Law of Colorado's Nontributary Ground Water“, see 62 Den. U. L. Rev. 809 (1985).   The administration and enforcement of the act is placed in the hands of an administrative commission, the state engineer and locally formed ground water management districts, and the commission is empowered to designate the ground water basins and to supervise and control the administration of all ground water so designated, it also grants or denies petitions for the formation of management districts within each ground water basin. Jackson v. Colo., 294 F. Supp. 1065 (D. Colo. 1968 ).   General assembly not prevented from placing water adjudication jurisdiction in commission. Although in Colorado jurisdiction for water adjudication has traditionally been in the courts, there is nothing in the state constitution -- and particularly nothing in § 6 of art. XVI -- to prevent the general assembly from placing such jurisdiction in a different agency, such as the ground water commission in the case of designated ground water, considering that such determinations are appealable to the courts. In re Water Rights in Irrigation Div. No. 1, 181 Colo. 395 , 510 P.2d 323 (1973).   Commission is proper agency to determine whether place of use of water can be changed without injury to others and, if so, the conditions to be imposed to prevent injury. In re Water Rights in Irrigation Div. No. 1, Irrigation Dist. No. 1, 181 Colo. 395 , 510 P.2d 323 (1973).   The ground water commission is charged with establishing priority dates for wells within designated ground water basins and is empowered, in the absence of a management district, to supervise and control the exercise and administration of all rights acquired for the use of designated ground water, including limiting or prohibiting the withdrawal of water from wells when necessary to protect prior appropriators from unreasonable injury. Upper Black Squirrel Creek v. Goss, 993 P.2d 1177 (Colo. 2000).   However, where a management district exists, the management district has authority to administer designated ground water priorities within its boundaries. Upper Black Squirrel Creek v. Goss, 993 P.2d 1177 (Colo. 2000).   The Ground Water Management Act empowers the ground water commission, or a water management district where one exists, to issue well withdrawal curtailment orders in the administration of priorities, but does not impose a non-discretionary duty to do so. Upper Black Squirrel Creek v. Goss, 993 P.2d 1177 (Colo. 2000).   And, the management district's rules, its control and conservation measures, and its well spacing criteria, apply to the ground water commissions's injury analysis in the permitting phase, as they do when the management district addresses questions of administration and enforcement. Upper Black Squirrel Creek v. Goss, 993 P.2d 1177 (Colo. 2000).   Commission may permit use change beyond designated ground water basin. In the absence of a ground water management district, the ground water commission has the authority to permit a change in type of use and a change of place of use to an area beyond the boundaries of a designated ground water basin. Cherokee Water Dist. v. State, Ground Water Comm'n, 196 Colo. 192 , 585 P.2d 586 (1978).   Determination as to whether disputed ground water is ”designated ground water“. The ground water commission is the appropriate forum for determining whether disputed ground water is designated ground water located in a designated ground water basin. Pioneer Irrigation Dists. v. Danielson, 658 P.2d 842 (Colo. 1983).   Since both the commission and state engineer have enforcement authority of the regulations established under the act and are the real and substantial parties in interest in an action to enjoin enforcement of water control measures, and consequently the suit is not against the state and therefore not barred by the federal constitution, and a decree could be entered in favor of or against the plaintiff without increasing or decreasing the decreed surface water rights or injuring the well owner's constitutional rights to appropriate water and apply it to a beneficial use, therefore, a decision for or against the plaintiff might indirectly affect the interests of all water users, but could not alter vested legal rights so as to raise the water users to the status of indispensable parties, and hence, the practical considerations and the absence of legal prejudice preclude a finding that all water users are indispensable parties. Jackson v. Colo., 294 F. Supp. 1065 (D. Colo. 1968 ).   Change in place of use allowed only without unreasonable harm to prior appropriator. 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).   Applied in Colo. Ground Water Comm'n v. Dreiling, 198 Colo. 560 , 606 P.2d 836 (1979).