CO Code § 37-92-602 (2021)
2021 Colorado Code|Title 37 - Water and Irrigation|Article 92 - Water Right Determination and Administration|Part 6 - Application of Article|§ 37-92-602. Exemptions - Presumptions - Legislative Declaration - Definitions

  This article, except for sections 37-92-201 and 37-92-202, does not apply to:   Designated groundwater basins as defined and established by article 90 of this title;    Wells not exceeding fifteen gallons per minute of production and used for ordinary household purposes, fire protection, the watering of poultry, domestic animals, and livestock on farms and ranches and for the irrigation of not over one acre of home gardens and lawns but not used for more than three single-family dwellings;    Wells not exceeding fifteen gallons per minute of production and used for drinking and sanitary facilities in individual commercial businesses;    Wells to be used exclusively for fire-fighting purposes if said wells are capped, locked, and available for use only in fighting fires;    Wells not exceeding fifty gallons per minute that are in production as of May 22, 1971, and were and are used for ordinary household purposes for not more than three single-family dwellings, fire protection, the watering of poultry, domestic animals, and livestock on farms and ranches, and for the irrigation of not over one acre of gardens and lawns;    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; and      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 thus collected is limited to one or more of the following: (g) (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 thus collected is limited to one or more of the following:   Ordinary household purposes;    Fire protection;    The watering of poultry, domestic animals, and livestock on farms and ranches; or    The irrigation of not more than one acre of gardens and lawns.       As used in subparagraph (I) of this paragraph (g), ”a building that is used primarily as a residence“ may include, but is not limited to, any structure used for habitation, regardless of whether the structure is operated commercially or inhabited intermittently.    On and after July 1, 2009, any person wishing to use a system or method of rooftop precipitation capture that qualifies as exempt under subparagraph (I) of this paragraph (g) shall comply with one of the following provisions of sub-subparagraph (A), (B), or (C) of this subparagraph (III):   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 as exempt under subparagraph (I) of this paragraph (g) 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 this section and who intends to use a system or method of rooftop precipitation capture that qualifies as exempt under subparagraph (I) of this paragraph (g) 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 subparagraph (II) 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 this section, including the provisions of subsection (6) of this section, 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 (g), 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 under this section.       A person using or legally entitled to use a well pursuant to this section, including the provisions of subsection (6) of this section, shall be allowed to collect rooftop precipitation pursuant to this paragraph (g) 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.    (A) The state engineer or the division engineers may issue, to the users of methods or systems of rooftop precipitation collection, orders necessary to implement the provisions of this paragraph (g). If such orders are given orally, they shall be confirmed promptly in writing. (1.5) A person withdrawing water from a well pursuant to 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.          With respect to applications filed prior to May 8, 1972, the state engineer shall issue a permit for the construction of wells specified in subsection (1) of this section without regard to the provisions of section 37-90-137 (2) and (3) upon submission of an application which shall be accompanied by a fee of five dollars. It is the legislative intent that the exemption in subsection (1) of this section is for an applicant to obtain a water supply for his own use.        Repealed. (a) (I)Repealed.    Effective July 1, 2006, wells of the type described in paragraphs (b) to (d) of subsection (1) of this section may be constructed only upon the issuance of a permit in accordance with the provisions of this subsection (3). A person desiring to use such a well shall submit an application for a permit accompanied by a fee of sixty dollars for an application under paragraph (c) of this subsection (3) and a fee of one hundred dollars for an application under paragraph (b) of this subsection (3).         With respect to applications filed on and after May 8, 1972, the state engineer shall first make a determination as to whether or not the exercise of the requested permit will materially injure the vested water rights of others or any other existing well, subject to the provisions of subparagraph (II) of this paragraph (b). If the state engineer finds that the vested water rights of others or any other existing well will be materially injured, he shall deny the permit. Otherwise, the permit shall be issued, and it shall set forth such conditions for drilling, casing, equipping, and using the well as are reasonably necessary to prevent waste, pollution, or material injury to existing rights. The state engineer shall endorse upon the application the date of its receipt, file and preserve such application, and make a record of such receipt and the issuance of the permit in his office, so indexed as to be useful in determining the extent of the uses made from various groundwater sources. (b) (I) With respect to applications filed on and after May 8, 1972, the state engineer shall first make a determination as to whether or not the exercise of the requested permit will materially injure the vested water rights of others or any other existing well, subject to the provisions of subparagraph (II) of this paragraph (b). If the state engineer finds that the vested water rights of others or any other existing well will be materially injured, he shall deny the permit. Otherwise, the permit shall be issued, and it shall set forth such conditions for drilling, casing, equipping, and using the well as are reasonably necessary to prevent waste, pollution, or material injury to existing rights. The state engineer shall endorse upon the application the date of its receipt, file and preserve such application, and make a record of such receipt and the issuance of the permit in his office, so indexed as to be useful in determining the extent of the uses made from various groundwater sources.    (A) If a permit is sought by a user for a well exempted under paragraph (b) of subsection (1) of this section which will be the only well on a residential site, which well will be used solely for ordinary household purposes inside a single-family dwelling and will not be used for irrigation or will be the only well on a tract of land of thirty-five acres or more or will be the only well on a cluster development lot, serving one single-family residence, where the ratio of water usage in the cluster development does not exceed one acre-foot of annual withdrawals for each thirty-five acres within the cluster development and will be used solely for the purposes specified in paragraph (b) of subsection (1) of this section, and the return flow from such uses shall be returned to the same stream system in which the well is located, there shall be a presumption that there will not be material injury to the vested water rights of others or to any other existing well resulting from such well, which presumption may be rebutted by evidence sufficient to show such material injury.    Except as specified in subsection (3)(b)(IV) of this section, if the application is for a well, as defined in subsection (3)(b)(II) of this section, which will be located in a subdivision, as defined in section 30-28-101 (10), and approved on or after June 1, 1972, pursuant to article 28 of title 30, 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.    If an existing well was permitted under the presumption set forth in subsection (3)(b)(II)(A) of this section, the presumption is not lost if:   The land on which the well is located is divided into multiple parcels;    The well is used on only a single parcel of the divided land and remains the only well serving that parcel;    With respect to the parcel of the land that the well still serves, the permit holder continues to use the well in accordance with subsections (1)(b) and (3)(b)(II)(A) of this section; and    The permit holder provides return flows in accordance with subsection (3)(b)(II)(A) of this section.            If any person wishes to relocate an existing well of the type specified in paragraphs (b) to (e) of 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 which is to be relocated. (c) (I) If any person wishes to relocate an existing well of the type specified in paragraphs (b) to (e) of 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 which is to be relocated.    (A) If such relocated well will not change substantially the usage of water which can lawfully be made by means of the existing well, a permit to construct and use the relocated well shall be issued, and the existing well shall be abandoned within ninety-one days after the completion of the relocated well.         Repealed. (d) (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.       The state engineer shall act upon an application filed under this subsection (3) within forty-nine days after such filing and shall support his or her ruling with a written statement of the basis therefor, and the provisions of article 4 of title 24, C.R.S., shall apply.    Any person aggrieved by a decision of the state engineer granting or denying an application filed under this subsection (3) may within thirty-five days after such decision file a petition for review with the water clerk of the water division in which the well is located. Upon receipt of such petition, the water judge of said water division shall promptly conduct such hearings as are 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 water judge shall order the state engineer to grant or to deny the application, as such reversal may require, and may specify such terms and conditions as are appropriate. Appeals from any decision of the water judge shall be made as in other civil actions.       Notwithstanding the provisions of the introductory portion of subsection (1) of this section, water rights for wells of the type specified in paragraphs (b) to (e) of said subsection (1) may be determined pursuant to sections 37-92-302 to 37-92-306; except that the original priority date of any such well may be awarded regardless of the date of application therefor.      Repealed.    Effective July 1, 2006, any wells exempted 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 appropriated or first put to beneficial use.       It is hereby declared to be the policy of the state of Colorado that the exemptions set forth in this section are intended to allow citizens to obtain a water supply in less densely populated areas for in-house and domestic animal uses where other water supplies are not available. It is not the intent that these wells be used to cause material injury to prior vested water rights, and, wherever possible, persons seeking the use of such individual wells may be required to develop plans for augmentation pursuant to section 37-92-302 or to develop other replacement plans acceptable to the state engineer.    Notwithstanding the amount specified for any fee in this section, the state engineer 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 state engineer 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 general assembly hereby declares that storm water detention and infiltration facilities and post-wildland fire facilities are essential for the protection of public safety and welfare, property, and the environment.    For the purposes of this subsection (8):   A ”storm water detention and infiltration facility“ means a facility that is operated solely for storm water management and:   Is owned or operated by a governmental entity or is subject to oversight by a governmental entity;    Continuously releases or infiltrates at least ninety-seven percent of all of the water from a rainfall event that is equal to or less than a five-year storm within seventy-two hours after the end of the rainfall event;    Continuously releases or infiltrates all of the water from a rainfall event greater than a five-year storm as quickly as practicable, but in all cases releases or infiltrates at least ninety-nine percent of all of the water from the rainfall event within one hundred twenty hours after the end of the rainfall event; and    Operates passively and does not subject the storm water runoff to any active treatment process.       A ”post-wildland fire facility“ means a facility that is:   Not permanent;    Located on, in, or adjacent to a nonperennial stream;    Designed and operated solely for the mitigation of the impacts of wildland fire events; and    Designed and operated to minimize the quantity of water detained and the duration of the detention of water to the levels necessitated by public safety and welfare.            Storm water detention and infiltration facilities in existence on August 5, 2015, that are operated in compliance with paragraphs (b) and (e) of this subsection (8) and post-wildland fire facilities that are operated in compliance with paragraphs (b) and (e) of this subsection (8) do not cause material injury to vested water rights. (c) (I) Storm water detention and infiltration facilities in existence on August 5, 2015, that are operated in compliance with paragraphs (b) and (e) of this subsection (8) and post-wildland fire facilities that are operated in compliance with paragraphs (b) and (e) of this subsection (8) do not cause material injury to vested water rights.    (A) The holder of a vested water right may bring an action in a court of competent jurisdiction to determine whether the operation of a storm water detention and infiltration facility constructed after August 5, 2015, has caused material injury to that water right. Operation of the facility in compliance with paragraphs (b) and (e) of this subsection (8) creates a rebuttable presumption that the facility does not cause material injury to vested water rights if the operation of the facility approximates and does not cause a material reduction in the natural hydrograph with respect to peak flows that would have existed without the upstream urban development that results in the storm water being managed by the storm water detention and infiltration facility.       An entity that owns, operates, or has oversight for a storm water detention and infiltration facility constructed after August 5, 2015, shall, prior to operation of the facility, provide notice of the location and approximate surface area at design volume of the facility and the data that demonstrates that the facility has been designed to comply with sub-subparagraphs (B) and (C) of subparagraph (I) of paragraph (b) of this subsection (8) to all parties on the substitute water supply plan notification list maintained by the state engineer pursuant to section 37-92-308 (6) for the water division in which the facility is located.      Water detained or released by a storm water detention and infiltration facility or post-wildland fire facility shall not be used for any purpose, including, without limitation, by substitution or exchange, by the entity that owns, operates, or has oversight over the facility or that entity's assignees, and is available for diversion in priority after release or infiltration. (e) (I) Water detained or released by a storm water detention and infiltration facility or post-wildland fire facility shall not be used for any purpose, including, without limitation, by substitution or exchange, by the entity that owns, operates, or has oversight over the facility or that entity's assignees, and is available for diversion in priority after release or infiltration.    An entity shall not release water detained by a storm water detention and infiltration facility or post-wildland fire facility for the subsequent diversion or storage by the person that owns, operates, or has oversight over the facility or that entity's assignees.    The operation of a storm water detention and infiltration facility or post-wildland fire facility is not the basis for a water right, credit, or other right to or for the use of water.       A person who installed or operated a post-wildland fire facility shall ensure that the facility is removed or rendered inoperable after the emergency conditions created by the wildfire no longer exist.    Nothing in this subsection (8) alters, amends, or affects any otherwise applicable requirement to obtain a state or local permit for a storm water management facility or post-wildland fire facility constructed on or after August 5, 2015.    The provisions of this subsection (8) relating to storm water detention and infiltration facilities do not apply to Fountain creek and its tributaries, except for facilities required by or operated in compliance with a Colorado discharge permit system municipal separate storm sewer system permit issued by the department of public health and environment pursuant to article 8 of title 25, C.R.S.        History. Source: L. 69: P. 1219, § 1. C.R.S. 1963; § 148-21-45. L. 71: P. 1341, § 1. L. 72: Pp. 629-631, §§ 1, 2. L. 73: P. 1530, § 1. L. 75: (3)(b)(III) added, p. 1003, § 2, effective July 18. L. 87: (3)(a), (3)(e), and (5) amended, p. 1303, § 8, effective July 2. L. 88: (3)(b)(II) amended and (6) added, pp. 1243, 1244, §§ 1, 2, 3, effective May 17. L. 90: (3)(b)(II) amended, p. 1628, § 1, effective April 10. L. 91: (3)(b)(II) amended, p. 2021, § 1, effective March 27. L. 92: (1)(f) added and (5) amended, pp. 2300, 2301, §§ 7, 8, effective March 19. L. 93: (3)(b)(II) amended, p. 2100, § 1, effective July 1. L. 94: (3)(c) amended, p. 336, § 1, effective March 29. L. 96: (3)(b)(II)(A) amended and (3)(b)(II)(D) added, p. 1882, § 3, effective June 6. L. 98: (7) added, p. 1346, § 79, effective June 1; (5) amended, p. 1224, § 15, effective August 5. L. 2003: (3)(a), (3)(d), and (5) amended, p. 47, § 8, effective (see editor's note); (3)(a)(I)(A), (3)(a)(II), (5)(a)(I), and (5)(b) amended, p. 1685, § 18, effective May 14. L. 2009: (1)(e) and (1)(f) amended and (1)(g) added,(SB 09-080), ch. 179, p. 791, § 3, effective July 1. L. 2012: IP(1) and (1)(g)(V)(C) amended,(SB 12-009), ch. 197, p. 793, § 11, effective July 1; (3)(c)(II)(A), (3)(e), and (3)(f) amended,(SB 12-175), ch. 208, p. 894, § 168, effective July 1. L. 2013: (1.5) added,(HB 13-1044), ch. 228, p. 1091, § 10, effective May 15. L. 2015: (8) added,(SB 15-212), ch. 256, p. 930, § 1, effective August 5. L. 2020: (3)(b)(III) amended and (3)(b)(IV) added,(SB 20-155), ch. 226, p. 1107, § 1, effective July 2. History. Source: L. 69: P. 1219, § 1. C.R.S. 1963; § 148-21-45. L. 71: P. 1341, § 1. L. 72: Pp. 629-631, §§ 1, 2. L. 73: P. 1530, § 1. L. 75: (3)(b)(III) added, p. 1003, § 2, effective July 18. L. 87: (3)(a), (3)(e), and (5) amended, p. 1303, § 8, effective July 2. L. 88: (3)(b)(II) amended and (6) added, pp. 1243, 1244, §§ 1, 2, 3, effective May 17. L. 90: (3)(b)(II) amended, p. 1628, § 1, effective April 10. L. 91: (3)(b)(II) amended, p. 2021, § 1, effective March 27. L. 92: (1)(f) added and (5) amended, pp. 2300, 2301, §§ 7, 8, effective March 19. L. 93: (3)(b)(II) amended, p. 2100, § 1, effective July 1. L. 94: (3)(c) amended, p. 336, § 1, effective March 29. L. 96: (3)(b)(II)(A) amended and (3)(b)(II)(D) added, p. 1882, § 3, effective June 6. L. 98: (7) added, p. 1346, § 79, effective June 1; (5) amended, p. 1224, § 15, effective August 5. L. 2003: (3)(a), (3)(d), and (5) amended, p. 47, § 8, effective (see editor's note); (3)(a)(I)(A), (3)(a)(II), (5)(a)(I), and (5)(b) amended, p. 1685, § 18, effective May 14. L. 2009: (1)(e) and (1)(f) amended and (1)(g) added,(SB 09-080), ch. 179, p. 791, § 3, effective July 1. L. 2012: IP(1) and (1)(g)(V)(C) amended,(SB 12-009), ch. 197, p. 793, § 11, effective July 1; (3)(c)(II)(A), (3)(e), and (3)(f) amended,(SB 12-175), ch. 208, p. 894, § 168, effective July 1. L. 2013: (1.5) added,(HB 13-1044), ch. 228, p. 1091, § 10, effective May 15. L. 2015: (8) added,(SB 15-212), ch. 256, p. 930, § 1, effective August 5. L. 2020: (3)(b)(III) amended and (3)(b)(IV) added,(SB 20-155), ch. 226, p. 1107, § 1, effective July 2.    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 (3)(a)(I)(B) provided for the repeal of subsection (3)(a)(I), subsection (3)(d)(I)(B) provided for the repeal of subsection (3)(d)(I), and subsection (5)(a)(II) provided for the repeal of subsection (5)(a), effective July 1, 2006. (SeeL. 2003, p. 47.)     Cross references:    For rule-making and licensing procedures of state agencies, see article 4 of title 24; for the ”Colorado Groundwater Management Act“, see article 90 of this title 37; for water divisions, see § 37-92-201; for division engineers, see § 37-92-202; for applications for water rights, see § 37-92-302; for rulings by the referee, see § 37-92-303; for proceedings by the water judge, see § 37-92-304; for standards with respect to rulings of the referee and decisions of the water judge, see § 37-92-305; for when priorities junior to prior awards, see § 37-92-306.    For the legislative declaration contained in the 2003 act amending subsections (3)(a), (3)(d), and (5), see section 1 of chapter 7, Session Laws of Colorado 2003. For the legislative declaration in the 2013 act adding subsection (1.5), see section 1 of chapter 228, Session Laws of Colorado 2013.     ANNOTATION   Law reviews. For article, ”Synthetic Fuels -- Policy and Regulation“, see 51 U. Colo. L. Rev. 465 (1981). For article, ”Recent Developments in Colorado Groundwater Law“, see 58 Den. L.J. 801 (1981). For article, ”Water Rights -- How to Avoid Getting in Over Your Head“, see 11 Colo. Law. 2143 (1982).   All wells involved in a plan for augmentation must be treated as if they were nonexempt. Kelly Ranch v. Southeastern Colo. Water Conservancy Dist., 191 Colo. 65 , 550 P.2d 297 (1976); Application of Turkey Canon Ranch Ltd., 937 P.2d 739 (Colo. 1997).   Owners of unadjudicated wells exempted under subsection (4) have vested water rights and may assert injury to their water rights in water court once they have filed for adjudication of those rights. However, the priority of such a right is not enforceable until an application for adjudication has been filed. Once the exempt well owner files, he or she has a statutorily guaranteed expectation of the original priority date of the well regardless of the date of application. Application of Turkey Canon Ranch Ltd., 937 P.2d 739 (Colo. 1997).   Actual entry of a decree is not a condition precedent to an appearance by an exempt well owner in an augmentation proceeding. Once the exempt well owner has filed for adjudication, any uncertainty in the award of a priority date is statutorily resolved. Application of Turkey Canon Ranch Ltd., 937 P.2d 739 (Colo. 1997).   Findings by the state engineer were held not to be a condition precedent to a water court ruling in the context of an augmentation proceeding where objectors were not permitted to assert injury to their exempt wells. Application of Turkey Canon Ranch Ltd., 937 P.2d 739 (Colo. 1997).   Under a plan for augmentation, wells, which might be exempt otherwise, must be treated as nonexempt. Cache La Poudre Water Users Ass'n v. Glacier View Meadows, 191 Colo. 53 , 550 P.2d 288 (1976); Application of Turkey Canon Ranch Ltd., 937 P.2d 739 (Colo. 1997).   Of necessity, the issuance of well permits, the adjudication of a plan for augmentation involving wells, and the enforcement of that plan and regulations involving wells must relate to wells which are subject to administration. Cache La Poudre Water Users Ass'n v. Glacier View Meadows, 191 Colo. 53 , 550 P.2d 288 (1976).   Under the act, an exempt well, standing alone, was and is free from regulation by either a water court or the state engineer. When, however, one studies § 37-92-302 , relating to a plan for augmentation, the conclusion is inescapable that all wells involved in the plan must be treated as if they were nonexempt. Cache La Poudre Water Users Ass'n v. Glacier View Meadows, 191 Colo. 53 , 550 P.2d 288 (1976).   Postponement doctrine does not apply to vested water rights in exempt wells. Application of Turkey Canon Ranch Ltd., 937 P.2d 739 (Colo. 1997).   Adjudication of priorities of small well owners permitted before this statute. Davis v. Conour, 178 Colo. 376 , 497 P.2d 1015 (1972).   Applied in Southeastern Colo. Water Conservancy Dist. v. Rich, 625 P.2d 977 (Colo. 1981).