CO Code § 37-90-102 (2021)
2021 Colorado Code|Title 37 - Water and Irrigation|Article 90 - Underground Water|§ 37-90-102. Legislative Declaration

  It is declared that the traditional policy of the state of Colorado, requiring the water resources of this state to be devoted to beneficial use in reasonable amounts through appropriation, is affirmed with respect to the designated groundwaters of this state, as said waters are defined in section 37-90-103 (6). While the doctrine of prior appropriation is recognized, such doctrine should be modified to permit the full economic development of designated groundwater resources. Prior appropriations of groundwater should be protected and reasonable groundwater pumping levels maintained, but not to include the maintenance of historical water levels. All designated groundwaters in this state are therefore declared to be subject to appropriation in the manner defined in this article.    The general assembly finds and declares that the allocation of nontributary groundwater pursuant to statute is based upon the best available evidence at this time. The general assembly recognizes the unique, finite nature of nontributary groundwater resources outside of designated groundwater basins and declares that such nontributary groundwater shall be devoted to beneficial use in amounts based upon conservation of the resource and protection of vested water rights. Economic development of this resource shall allow for the reduction of hydrostatic pressure levels and aquifer water levels consistent with the protection of appropriative rights in the natural stream system. The doctrine of prior appropriation shall not apply to nontributary groundwater. To continue the development of nontributary groundwater resources consonant with conservation shall be the policy of this state. Such water shall be allocated as provided in this article upon the basis of ownership of the overlying land. This policy is a reasonable exercise of the general assembly's plenary power over this resource.    Repealed.     History. Source: L. 65: R&RE, p. 1246, § 1. C.R.S. 1963: § 148-18-1. L. 85: Entire section amended, p. 1160, § 1, effective July 1. L. 98: (3) added, p. 852, § 1, effective May 26. L. 2001: (3) amended, p.158, § 1, effective March 28. L. 2003: (3) amended, p. 1596, § 2, effective May 2. History. Source: L. 65: R&RE, p. 1246, § 1. C.R.S. 1963: § 148-18-1. L. 85: Entire section amended, p. 1160, § 1, effective July 1. L. 98: (3) added, p. 852, § 1, effective May 26. L. 2001: (3) amended, p.158, § 1, effective March 28. L. 2003: (3) amended, p. 1596, § 2, effective May 2.    Editor's note:   Subsection (3)(b) provided for the repeal of subsection (3), effective July 1, 2004. (See L. 1998, p. 852 .)   ANNOTATION   Law reviews. For article, ”Ground Water Legislation“, see 30 Rocky Mt. L. Rev. 416 (1958). For article, ”Colorado Ground Water Act of 1957 -- Is Ground Water Property of the Public?“, see 31 Rocky Mt. L. Rev. 165 (1959). For note on payment for replacement of diversion work made obsolete when subsequent uses lower the water level, see 37 U. Colo. L. Rev. 402 (1965). For article, ”Colorado's New Ground Water Laws“, see 38 U. Colo. L. Rev. 295 (1966). For article, ”Water for Recreation: A Plea for Recognition“, see 44 Den. L.J. 288 (1967). For note, ”A Survey of Colorado Water Law“, see 47 Den. L.J. 226 (1970). For article, ”The Groundwater-Surface Water Conflict and Recent Colorado Water Legislation“, see 43, U. Colo. L. Rev. 1 (1971). For article, ”Ground Water Mining Law and Policy“, see 53 U. Colo. L. Rev. 505 (1982). For article, ”The Continuing Groundwater Saga -- Part I: Senate Bill 5“, see 15 Colo. Law. 422 (1985). For article, ”The Continuing Groundwater Saga -- Part II: The Denver Basin Rules“, see 15 Colo. Law. 667 (1986). For article, ”The Physical Solution in Western Water Law“, see 57 U. Colo. L. Rev. 445 (1986).   Article not unconstitutional in violation of §§ 5 and 6 of art. XVI, Colo. Const., insofar as said act applies to tributary ground water. Kuiper v. Lundvall, 187 Colo. 40 , 529 P.2d 1328 (1974), cert. denied, 421 U.S. 996, 95 S. Ct. 2391, 44 L. Ed. 2d 663 (1975).   Article is not unconstitutional on theory that it delegates judicial functions to an administrative agency of the executive branch of the government. Kuiper v. Lundvall, 187 Colo. 40 , 529 P.2d 1328 (1974), cert. denied, 421 U.S. 996, 95 S. Ct. 2391, 44 L. Ed. 2d 663 (1975).   This article is not unconstitutional on theory that it bestows powers upon the state engineer and the Colorado ground water commission to grant or refuse a permit to drill a well thereby giving them, in effect, the authority to adjudicate a water right. Kuiper v. Lundvall, 187 Colo. 40 , 529 P.2d 1328 (1974), cert. denied, 421 U.S. 996, 95 S. Ct. 2391, 44 L. Ed. 2d 663 (1975).   If a plaintiff were permitted to proceed on a theory of ”unappropriated water“ under § 6 of art. XVI, Colo. Const., and pump water from his proposed well until such time as it was no longer economically feasible to withdraw water from the aquifer, then no subsequent regulation of his pumping could protect senior appropriators, and all pumping from the basin within the area of influence of the plaintiff's well would have to cease until a reasonable pumping level was restored through the slow process of recharge, and this is not the concept of appropriation contained in this section, and not the one the supreme court will follow. Fundingsland v. Colo. Ground Water Comm'n, 171 Colo. 487 , 468 P.2d 835 (1970).   This act is an attempt to permit the full development of ground water sources and alleviate the growing friction between surface water appropriators and well owners. North Kiowa-Bijou Mgt. Dist. v. Ground Water Comm'n, 180 Colo. 314 , 505 P.2d 377 (1973).   Prior appropriation rules for surface water are primarily designed and developed to protect the relative rights of senior and junior appropriators, in order to maximize the beneficial use of the surface water. Danielson v. Kerbs AG., Inc., 646 P.2d 363 (Colo. 1982).   This act creates in the owner of overlying land an inchoate right to control and use a specified amount of nontributary ground water. The right may vest upon construction of a well in accordance with a permit from the state engineer or by adjudication in the water court. E. Cherry Creek Water & Sanitation Dist. v. Rangeview Metro. Dist., 109 P.3d 154 (Colo. 2005).   In view of the clearly expressed legislative intent to permit adjudication for future uses without a corresponding obligation to develop them, anti-speculation doctrine does not apply to a judicial determination of available nontributary ground water, because a structure to withdraw nontributary ground water may not be constructed without satisfying the state engineer of a non-speculative, beneficial use to which the water will be put. E. Cherry Creek Water & Sanitation Dist. v. Rangeview Metro. Dist., 109 P.3d 154 (Colo. 2005).   Designated ground water treated differently. 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).   The general assembly chose a modified system of prior appropriation for the establishment and administration of rights to use designated ground water in order to: (1) Permit full economic development of designated ground water resources; (2) protect prior appropriations of designated ground water; and (3) protect and maintain reasonable ground water pumping levels. Upper Black Squirrel Creek v. Goss, 993 P.2d 1177 (Colo. 2000).   The court and the Colorado ground water commission derive their authority to pass on an application to drill a well on certain property from this section (formerly Senate Bill 367), which deals with captive ground water. Fundingsland v. Colo. Ground Water Comm'n, 171 Colo. 487 , 468 P.2d 835 (1970).   This act separates certain water termed ”designated ground water“ from the system of appropriation for surface water systems, and it creates a permit system for the allocation and use of ground waters within designated ground water basins. North Kiowa-Bijou Mgt. Dist. v. Ground Water Comm'n, 180 Colo. 314 , 505 P.2d 377 (1973).   Provisions create conceptual framework for appropriation and administration of ground and tributary water. The Colorado Ground Water Management Act, §§ 37-90-101 et seq., and the Water Right Determination and Administration Act of 1969, §§ 37-92-101 et seq., create a conceptual framework which provide for the appropriation and administration of designated ground water under the management act, and the appropriation and administration of all tributary water, except that which may be included in the definition of ”designated ground water“, under the 1969 act. State ex rel. Danielson v. Vickroy, 627 P.2d 752 (Colo. 1981).   Ground water existing in designated underground water basins is made subject to the doctrine of prior appropriation. Fundingsland v. Colo. Ground Water Comm'n, 171 Colo. 487 , 468 P.2d 835 (1970).   Because one's right to water is determined by priority of appropriation which is based on a beneficial use of the water, plaintiff's claim that she is entitled to ownership of the water rights by virtue of her co-tenancy in the overlying land fails. Farmer v. Farmer, 720 P.2d 174 (Colo. App. 1986).   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).   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).   The general assembly has plenary power over the allocation and use of nontributary water and may subject the vesting of use rights in such water to whatever requirements it may design. A deed purporting to transfer nontributary water rights may not negate the application of legislative choices to an inchoate right. Chatfield East Well Co. v. Chatfield East Prop. Owners Ass'n, 956 P.2d 1260 (Colo. 1998).   Appropriators of the ”designated ground waters“ are required to obtain a permit for their appropriations and the act establish 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. Jackson v. Colo. 294 F. Supp. 1065 (D. Colo. 1968 ).   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).   Underground water basins require management that is different from the management of surface streams and underground waters tributary to such streams. Fundingsland v. Colo. Ground Water Comm'n, 171 Colo. 487 , 468 P.2d 835 (1970).   General assembly has provided means to obtain maximum utilization of water resources. Kuiper v. Lundvall, 187 Colo. 40 , 529 P.2d 1328 (1974), cert. denied, 421 U.S. 996, 95 S. Ct. 2391, 44 L. Ed. 2d 663 (1975).   The underground water dealt with by this section is not subject to the same ready replenishment enjoyed by surface streams and tributary ground water. Fundingsland v. Colo. Ground Water Comm'n, 171 Colo. 487 , 468 P.2d 835 (1970).   While protecting against depletion of underground aquifer. Colorado's permit system for regulation of the appropriation of water in designated ground water basins under this article permits the full development of ground water sources while protecting against depletion of the underground aquifer, which is not subject to the same ready recharge enjoyed by surface streams and tributary ground water. Danielson v. Kerbs AG., Inc., 646 P.2d 363 (Colo. 1982).   This section is designed to protect prior appropriations of ground water while, at the same time, insuring that reasonable ground water pumping levels are maintained. Danielson v. Kerbs AG., Inc., 646 P.2d 363 (Colo. 1982).   The principles underlying the doctrine of prior appropriation are applicable to a designated ground water basin, modified only by the policy against any unreasonable depletion of the aquifer in the basin. Danielson v. Kerbs AG., Inc., 646 P.2d 363 (Colo. 1982).   The policies of protecting senior appropriators and maintaining reasonable ground water pumping levels set forth by the underground water act require management which takes into account the long-range effects of intermittent pumping in the aquifer. Fundingsland v. Colo. Ground Water Comm'n, 171 Colo. 487 , 468 P.2d 835 (1970).   Duties of commission. The ground water commission must protect senior appropriators against unreasonable injury, foster the full economic development of designated ground water resources, and conserve designated ground water resources. Thompson v. Colo. Ground Water Comm'n, 194 Colo. 489 , 575 P.2d 372 (1978); Colo. Ground Water Comm'n v. Dreiling, 198 Colo. 560 , 606 P.2d 836 (1979).   In the case of surface streams and underground waters tributary to such streams, seasonal regulation of diversion by junior appropriators can effectively protect the interests of more senior appropriators and no long-range harm can come of overappropriations since the streams are subject to seasonal recharge. Fundingsland v. Colo. Ground Water Comm'n, 171 Colo. 487 , 468 P.2d 835 (1970).   When water is being mined from the ground water basin, and a proposed appropriation would result in unreasonable harm to senior appropriators, then a determination that there is no water available for appropriation is justified. Fundingsland v. Colo. Ground Water Comm'n, 171 Colo. 487 , 468 P.2d 835 (1970).   Review provisions in ground water management act apply only to review by commission of promulgation and adoption by local management districts of proposed regulations and control measures generally applicable rather than individual actions taken by districts concerning interpretation, and district court in county in which wells were located, rather than commission, had jurisdiction. North Kiowa-Bijou Mgt. Dist. v. Ground Water Comm'n, 180 Colo. 314 , 505 P.2d 377 (1973).   For case construing the former 1957 Colorado ground water act, see Whitten v. Coit, 153 Colo. 157 , 385 P.2d 131 (1963).   Applied in 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).