2023 Colorado Revised Statutes › Title 37 - WATER AND IRRIGATION (§§ 37-1-101 — 37-99-103) › WATER RIGHTS AND IRRIGATION (§§ 37-80-101 — 37-93-101) › WATER RIGHT DETERMINATION AND ADMINISTRATION (§§ 37-92-101 — 37-92-602) › Article 92 - WATER RIGHT DETERMINATION AND ADMINISTRATION (§§ 37-92-101 — 37-92-602) › Part 3 - DETERMINATION AND ADMINISTRATION OF WATER RIGHTS (§§ 37-92-301 — 37-92-311) › Section 37-92-301 - [Effective 8/7/2024] Administration and distribution of waters

(1)
The state engineer shall be responsible for the administration and distribution of the waters of the state, and, in each division, such administration and distribution shall be accomplished through the offices of the division engineer as specified in this article.
(2)
In accordance with procedures specified in this article, the referee in each division shall in the first instance have the authority and duty to rule upon determinations of water rights and conditional water rights and the amount and priority thereof, including a determination that a conditional water right has become a water right by reason of completion of the appropriation, determinations with respect to changes of water rights, plans for augmentation, approvals of reasonable diligence in the development of appropriations under conditional water rights, and determinations of abandonment of a water rights or a conditional water rights; and he may include in any ruling for a determination of water right or conditional water right any use or combination of uses, any diversion or combination of points or methods of diversion, and any place or alternate places of storage and may approve any change of water right as defined in this article.
(3)
In the distribution of water, the division engineer in each division and the state engineer shall be governed by the priorities for water rights and conditional water rights established by adjudication decrees entered in proceedings concluded or pending on June 7, 1969, and by the priorities for water rights and conditional water rights determined pursuant to the provisions of this article. All such priorities shall take precedence in their appropriate order over other diversions of waters of the state. Subject to section
37-92-502 (2)
, in determining and administering the use of water, judicial and administrative officers shall be governed by the following:
(a)
In every case in which the owner of an appropriative right to divert water supplies his water needs by the use of a well, the water diverted by that well may be charged to its own appropriation; or it may be used to divert water under the provisions set forth in paragraph (b) of this subsection (3). This statutory statement is intended as a legislative acknowledgment of the long-held practice in Colorado under which various water rights may be carried through the same physical structure.
(b)
In any case in which the owner of an appropriative right to divert water at the surface of a stream or to have water so diverted delivered for his use or benefit has a well so situated as to draw water from the same stream system, that owner may secure the right to have such well, or more than one if he has more than one such well, made an alternate point of diversion to said surface right by procedures provided in this article for securing alternate points of diversion.
(c)
Until July 1, 1972, all diversions by well to supply a water use for which there is a surface decree may be charged against and be considered as part of the exercise of said surface decree even if the owner has not secured the right to an alternate point of diversion at the well, but nothing in this article shall be construed to prevent regulation of the well in accordance with law and within the system of priorities established for regulation of diversions of water in Colorado.
(d)
In authorizing alternate points of diversion for wells, the widest possible discretion to permit the use of wells shall prevail. In administering the waters of a watercourse, the withdrawal of water which will lower the water table shall be permitted but not to such a degree as will prevent the water source to be recharged or replenished under all predictable circumstances to the extent necessary to prevent injury to senior appropriators in the order of their priorities, and with due regard for daily, seasonal, and longer demands on the water supply.
(4)
(a)
(I)
In every sixth calendar year after the calendar year in which a water right is conditionally decreed, or in which a finding of reasonable diligence has been decreed, the owner or user thereof, if such owner or user desires to maintain the same, shall file an application for a finding of reasonable diligence, or said conditional water right shall be considered abandoned.
(I.5)
If an application described in subsection (4)(a)(I) of this section filed on or before December 31, 2050, seeks a finding of reasonable diligence for a conditional water right that is owned by an electric utility in division 6 since January 1, 2019, the water judge may consider the following as supporting evidence for a finding of reasonable diligence:
(A)
The conditional water right may be used to support a specific project or potential future generation technologies or concepts that have the potential to advance progress toward Colorado's clean energy and greenhouse gas emission reduction goals; and
(B)
The electric utility has made efforts to develop the water right with reasonable diligence, which may include efforts made by the electric utility or another entity in the electric generation and distribution industry or a related research industry to investigate the technical or commercial viability of future generation technologies or concepts that have the potential to advance progress toward Colorado's clean energy and greenhouse gas emission reduction goals.
(II)
If a conditional underground water right requires construction of a well, the expiration of the permit issued for the construction of such well by the state engineer pursuant to section
37-90-137 (1)
shall not be the sole basis for a determination of abandonment pursuant to subparagraph (I) of this paragraph (a).
(III)
The judgment and decree of the court shall specify the month and calendar year in which a subsequent application for a finding of reasonable diligence shall be filed with the water clerk pursuant to section
37-92-302 (1)
. A subsequent application shall be filed during the same month as the previous decree was entered every six years after such entry of the decree until the right is made absolute or otherwise disposed of.
(IV)
The provisions of this paragraph (a) shall supersede any contrary provision or requirement of a previous conditional decree or determination of reasonable diligence.
(b)
The measure of reasonable diligence is the steady application of effort to complete the appropriation in a reasonably expedient and efficient manner under all the facts and circumstances. When a project or integrated system is comprised of several features, work on one feature of the project or system shall be considered in finding that reasonable diligence has been shown in the development of water rights for all features of the entire project or system.
(c)
Subject to the provisions of paragraph (b) of this subsection (4), neither current economic conditions beyond the control of the applicant which adversely affect the feasibility of perfecting a conditional water right or the proposed use of water from a conditional water right nor the fact that one or more governmental permits or approvals have not been obtained shall be considered sufficient to deny a diligence application, so long as other facts and circumstances which show diligence are present.
(d)
In the case of a project or integrated system that contains more than one water storage feature, an applicant need not demonstrate that all existing absolute decreed water rights that are part of the project or integrated system have been utilized to their full extent in order to make absolute, in whole or in part, a conditional water storage right decreed for a separate feature of the project or integrated system.
(e)
A decreed conditional water storage right shall be made absolute for all decreed purposes to the extent of the volume of the appropriation that has been captured, possessed, and controlled at the decreed storage structure.
(5)
In all proceedings for a change of water right and for approval of reasonable diligence with respect to a conditional water right, it is appropriate for the referee and the courts to consider abandonment of all or any part of such water right or conditional water right; except that no conditional underground water right requiring the construction of a well shall be declared abandoned pursuant to this subsection (5) solely upon the ground that the permit issued for the construction of such well by the state engineer pursuant to section
37-90-137 (1)
has expired. In all such proceedings, no water storage right shall be declared abandoned in whole or in part on account of carrying water over in storage from year to year.
Amended by 2024 Ch. 276,§ 5, eff. 8/7/2024.
Amended by 2013 Ch. 111, § 3, eff. 8/7/2013.
L. 69: p. 1205, § 1. C.R.S. 1963: § 148-21-17. L. 71: p. 1324, § 4. L. 73: p. 1523, § 1. L. 74: (2) amended, p. 442, § 2, effective May 7. L. 77: (2) amended, p. 1702, § 1, effective June 19. L. 88: (4) amended, p. 1239, § 1, effective July 1. L. 90: (4) amended, p. 1625, § 1, effective April 13. L. 94: (4)(a) and (5) amended, p. 1209, § 2, effective May 19. L. 2013: (4)(d) and (4)(e) added and (5) amended, (SB 13-041), ch. 111, p. 382, § 3, effective August 7.
2024 Ch. 276, was passed without a safety clause. See Colo. Const. art. V, § 1(3).
This section is set out more than once due to postponed, multiple, or conflicting amendments.
(1) For the division engineer ordering discontinuance of diversion, see § 37-92-502(2) . (2) For the legislative declaration in the 2013 act adding subsections (4)(d) and (4)(e) and amending subsection (5), see section 1 of chapter 111, Session Laws of Colorado 2013.