Bill no.5, Concerning Ground Water, March 13, 1985

First Regular Session

LDO NO. 85 0180/1 Fifty-fifth General Assembly _{SENATE BILL}

_NO.

STATE OF COLORADO

BY SENATORS Bishop, Callihan, McCormick, Noble, and also REPRESENTATIVES Younglund, Dambman, Entz, Shoemaker, Wright, and Bath.

A BILL FOR AN

Rizzuto; Scherer,

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1 CONCERNING GROUND WATER.

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Bi 11 Summary

(Note: This summary applies to this bill as introduced and does not necessarily reflect any amendments which may be subsequently adopted.)

Makes a legislative declaration. Defines "nontributary ground water". Provides that permits to construct wells outside designated ground water basins to divert nontributary ground water shall not expire. Allows for metering of diversions and for disclosure of such metering. States that material injury to vested ground water rights shall not be deemed to result from the reduction of either hydrostatic pressure or water level in the aquifer. Retains the one-hundred-year life of an aquifer. Authorizes the owners of permits to seek permits for additional wells on the same basis as the original permits. Provides for the dewatering of geologic formations by removing nontributary ground water to facilitate mining. States that nontributary ground water shall not be administered in accordance with priority of appropriation. States that, to the extenr that the diversion of ground water will, within one hundred years from the time the diversion begins, affect the flow of a natural stream in an annual amount greater than one percent of the annual amount to be diverted, an amount of water equal to the entire effect upon such natural stream shall be replaced as . necessary to prevent material injury to vested water rights.

Be it enacted

QY

the General Assembly uf the State of Colorado:

As amended 2nd reading MAR 1a1q85

SENATE Capitill lettt'r~ indicnlP npu· malPrial lo be added to f'xisting statute.

1 SECTION 1. 37-90-102, Colorado Revised Statutes, is 2 amended to read:

3 37-90-102. Legislative declaration. (1) It is declared 4 that the traditional policy of the state of Colorado, 5 requiring the water resources of this state to be devoted to 6 beneficial use in reasonable amounts through appropriation, is 7 affirmed with respect to the designated ground waters of this 8 state, as said waters are defined in section 37-90-103 (6). 9 While the doctrine of prior appropriation is recognized, such 10 doctrine should be modified to pennit the full economic 11 development of designated ground water resources. Prior 12 appropriations of ground water should be protected and 13 reasonable ground water pumping levels maintained, but not to 14 include the maintenance of historical water levels. All 15 designated ground waters in this state are therefore declared 16 to be subject to appropriation in the manner defined in this 17 article.

18 (2) THE GENERAL ASSEMBLY FINDS AND DECLARES THAT THE 19 ALLOCATION OF NONTRIBUTARY GROUND WATER PURSUANT TO STATUTE IS 20 BASED UPON THE BEST AVAILABLE EVIDENCE AT THIS TIME. THE 21 GENERAL ASSEMBLY RECOGNIZES THE UNIQUE, FINITE NATURE OF 22 NONTRIBUTARY GROUND WATER RESOURCES OUTSIDE OF DESIGNATED 23 GROUND WATER BASINS AND DECLARES THAT SUCH NONTRIBUTARY GROUND 24 WATER SHALL BE DEVOTED TO BENEFICIAL USE IN Af.l)UNTS BASED UPON 25 CONSERVATION OF THE RESOURCE AND PROTECTION OF VESTED WATER 26

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RIGHTS. ECONOMIC DEVELOPMENT OF THIS RESOURCE SHALL ALLOW FOR THE REDUCTION OF HYDROSTATIC PRESSURE LEVELS AND AQUIFER WATER

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1 LEVELS. THE DOCTRINE OF PRIOR APPROPRIATION SHALL NOT APPLY

2 TO NONTRIBUTARY GROUND WATER. TO CONTINUE THE DEVELOPMENT OF 3 NONTRIBUTARY GROUND WATER RESOURCES CONSONANT WITH 4 CONSERVATION SHALL BE THE POLICY OF THIS STATE.

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WATER 5 SHALL BE ALLOCATED AS PROVIDED IN THIS APTICLE UPON THE BASIS 6 OF OWNERSHIP OF THE OVERLYING LAND. THIS POLICY IS A 7 REASONABLE EXERCISE OF THE GENERAL ASSEMBLY'S PLENARY POWER 8 OVER THIS RESOURCE.

9 SECTION 2. 37-90-103, Colorado Revised Statutes, as 10 amended, is amended BY THE ADDITION OF A NEW SUBSECTION, to 11 read:

12 37-90-103. Definitions. (10.5) "Nontributary ground 13 water" means that ground water, located outside the boundaries 14 of any designated ground water basins in existence on January 15 1, 1985, the withdrawal of which will not, within one hundred 16 years, affect the flow of a natural stream, including a 17 natural stream as defined in sections 37-82-101 (2) and 18 37-92-102 (1) (b), at an annual rate greater than one-tenth of 19 one percent of the annual rate of withdrawal. The 20 detennination of whether ground water is nontributary shall be 21 based on aquifer conditions existing at the time of permit 22 application, except that in recognition of the small amount of 23 water discharging from the Dawson, Denver, Arapahoe and 24 Laramie-Fox Hills aquifers into surface streams due to 25 artesian pressure, when compared with the great economic 26 importance of the ground water in those aquifers, and the 27 feasibility and requirement of full augmentation by wells

-l located in the tributary portions of those aquifers, it is 2 specifically found and declared that in determining whether 3 ground water of the Dawson, Denver, Arapahoe and Laramie-Fox 4 Hills aquifers is nontributary and in quantifying augmentation 5 requirements for wells located in the tributary portions of 6 those aquifers, it shall be assumed that the hydrostatic 7 pressure level in each such aquifer has been lowered at least 8 to the top of that aquifer.

9 SECTION 3. 37-90-137 (1), (3) (a), and (4), Colorado 10 Revised Statutes, as amended, are amended, and the said 11 37-90-137 is further amended BY THE ADDITION OF THE FOLLOWING 12 NEW SUBSECTIONS, to read:

13 37-90-137. Permits to construct wells outside designated 14 areas - fees - permit no ground water right - evidence - time 15 limitation. (1) ~P81R ON and after May 17, 1965, no new wells

16 shall be constructed outside the boundaries of a designated 17 ground water basin nor the supply of water from existing wells 18 outside the boundaries of a designated ground water basin 19 increased or extended, unless the user makes an application in 20 writing to the state engineer for a permit to construct a 21 well, in a form to be prescribed by the state engineer. The 22 applicant shall specify the particular ees4,Ralee aquifer from 23 which the water is to be diverted, the beneficial use to which 24 it is proposed to apply such water, the location of the 25 proposed well, the name of the owner of the land on which such

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well will be located, the average annual amount of water applied for in acre-feet per year, the proposed maximum

1 pumping rate in gallons per minute, and, if the proposed use 2 is AGRICULTURAL irrigation, a description of the land to be 3 irrigated and the name of the owner thereof, together with 4 such other reasonable information as the state engineer may 5 designate on the form prescribed.

6 (3) (a) Any permit to construct a well OUTSIDE A 7 DESIGNATED GROUND WATER BASIN, EXCEPT A PERMIT ISSUED PURSUANT 8 TO SUBSECTION (4) OR SUBSECTION (7) OF THIS SECTION, issued on 9 or after April 21, 1967, shall expire one year after the 10 issuance thereof, unless the applicant to whom such permit was 11 issued shall furnish to the state engineer, prior to such 12 expiration, evidence that the water from such well has been 13 put to beneficial use or unless, prior to such expiration, the 14 state engineer, upon application AND with good cause shown as 15 to why the well has not been completed and an estimate of the 16 time necessary to complete the well, extends such permit for 17 only one additional period certain, not to exceed one year; 18 but the limitation on the extension of well permits provided 19 for in this paragraph (a) shall not apply to well permits for 20 federally authorized water projects contained in paragraph (d) 21 of this subsection (3). The state engineer shall charge a 22 reasonable fee for such extension. A PERMIT ISSUED PURSUANT 23 TO SUBSECTION (4) OR SUBSECTION (7) OF THIS SECTION SHALL NOT 24 EXPIRE AND SHALL NOT REQUIRE THE FILING OF A STATEMENT OF 25 BENEFICIAL USE BUT MAY REQUIRE THE METERING OR OTHER 26 R(ASONABLE MEASUREMENT OF WITHDRAWALS OF GROUND WATER PURSUANT 27 TO SUCH PERMIT AND THE REASONABLE RECORDING AND DISCLOSURE OF

SUCH MEASURED WITHDRAWALS.

2 (4) In the issuance of a pennit to construct a well tft 3 ihese--a~Htfe,s--wh4eh--ee-ftet-Meet-the-eef4A4t4eAs-ef-seet4eft

4 a+-9Q-~Qa-ie1-e,-seet+eA-a+-92-i9a-i~~1T-afte-ee-ftet--Meet--the

5 eMeM~tteAs--set--fePth-4A-seet4eAs-a+-9Q-~Q§-aAe-a+-92-SQ2 NOT

6 MEETING THE EXEMPTIONS SET FORTH IN SECTION 37-92-602 OUTSIDE

7 A DESIGNATED GROUND WATER BASIN TO WITHDRAW NONTRIBUTARY

8 GROUND WATER OR ANY GROUND WATER IN THE DAWSON, DENVER,

9 ARAPAHOE, LARAMIE-FOX HILLS AND DAKOTA AQUIFERS, the

10 provisions of subsections (1) and (2) of this section shall

11 apply; except that tA-eeAs+eePtA§-whetheP-the-~ePMtt-sha~J-he

12 tssHeey-eA+Y THE APPLICANT SHALL BE ENTITLED TO WITHDRAW that

13 quantity of water, EXCLUSIVE OF ARTIFICIAL RECHARGE,

14 underlying the land owned by the applicant or hy-the-eWftePs-ef

15 ihe-aPeay-hy-the4P-eeftseAty-te-he-seP¥ee-4s-eeAs+eePee--te--he

16 HAa~~Pe,,4ateet--the-MtAtMHM·HsefH+-J4fe-ef-the-a~HtfeP-4s-eAe 17 hHA&Pee--yeaPSy--aSSHM+A!--that--thePe---4s---Ae---sHhSt&At4aJ

18 a,t4f4e4a~-PeehaP§e-w4th4A-sa4e-,eP4eet-aAe-Ae-MateP+ai-+A!HPY

19 te--¥estee-wateP-Pt!hts-weH+e-,esHit-fP&M-the-4ssHaAee-ef-sa4e 20 ,et'llltt UNDERLYING LAND OWNED BY ANOTHER WHO HAS CONSENTED IN

21 WRITING TO THE APPLICANT'S WITHDRAWAL

22 .Jllil.ESS SUCH CONSENT EXISTS BY VIRTUE OF A LA\·JFUL

23 ORDINANCE OR RESOLUTIO~ l N HIE.CT PRIOR TO JANUAfil..J l ~~5...1.

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OR WHO SHALL BE DEEMED

TO HAVE CONSENTED TO THE WITHDRAWAL OF _GROUND WATER PURSUANT

OF lfilS__SECTION ··

TO THE PROVISIONS OF SUBSECTION (8) / • MATERIAL INJURY

TO VESTED GROUND WATER RIGHTS SHALL NOT BE DEEMED TO RESULT

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1

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FROM THE REDUCTION OF EITHER HYDROSTATIC PRESSURE OR WATER LEVEL IN THE AQUIFER. SUCH PERMITS SHALL ALLOW WITHDRAWALS ON THE BASIS OF AN AQUIFER LIFE OF ONE HUNDRED YEARS. The state

l engineer may adopt PROCEDURAL rules and regulations PURSUANT 2 TO SECTION 37-92-501 to assist in, but not as a prerequisite 3 to, the granting or denial of permits to construct SUCH wells,

4 aRa--,e,-•he-a&Rl+RtSlPa•+eR-ef-lhts-~Rae,~~e~Ra-waleP IT BEING 5 THE INTENT OF THE GENERAL ASSEMBLY TO EXERCISE ITS PLENARY 6 POWER TO ESTABLISH THE SUBSTANTIVE BASIS ON WHICH NONTRIBUTARY

7 GROUND WATER OUTSIDE DESIGNATED GROUND WATER BASINS SHALL BE T

8 WITHDRAWN AND USED. OWNERS OF PERMITS GRANTED UNDER THIS 9 SUBSECTION (4) SHALL BE ENTITLED TO THE ISSUANCE OF PERMITS 10 FOR ADDITIONAL WELLS TO BE CONSTRUCTED ON THE LAND DESCRIBED 11 IN THIS SUBSECTION (4). THE STANDARDS OF THIS SUBSECTION (4)

12 SHALL BE APPLIED AS IF THE APPLICATIONS FOR THOSE ADDITIONAL 13 WELL PERMITS WERE FILED ON THE SAME DATES THAT THE ORIGINAL 14 APPLICATIONS WERE FILED.

15 (7) In the case of dewatering of geologic formations by

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16 removing nontributary ground water to facilitate or permit 17 mining of minerals:

18 (a) No well permit shall be required unless the 19 nontributary ground water being removed will be beneficially 20 used; and

21 (b) In the issuance of any well permit pursuant to this 22 subsection, the provisions of subsection (4) of this section 23 shall not apply. The provisions of subsections (1), (2) and 24 (3) -0f this section shall apply, except that in considering 25 whether the permit shall issue, the requirement that the state 26 engineer find that there is unappropriated water available for 27 withdrawal, and the six hundred foot spacing requirement in

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1 subsection (2), shall not apply. The state engineer shall 2 allow the rate of withdrawal stated by the applicant to be

3 necessary to dewater the mine ; .

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that if the state

4 engineer finds that the proposed dewatering will cause 5 material injury to the vested water rights of others, the 6 applicant may propose, and the pennit shall contain, tenns and 7 conditions which will prevent such injury. The reduction of 8 hydrostatic pressure level or water level alone does not 9 constitute material injury.

10 (8) Wherever any existing municipal or quasi-municipal 11 water supplier is obligated by law or contract in effect prior 12 to January 1, 1985 to be the exclusive provider of water to 13 land owners within a certain municipal or quasi-municipal 14 boundary in existence prior to said date, and those land 15 owners are precluded by law or contract in effect prior to 16 January 1, 1985 from withdrawinQ their own supplies of 17 nontributary ground water or ground water from the Dawson, 18 Denver, Arapahoe, Laramie-Fox Hills or Dakota aquifers and are 19 compelled to receive water service from that municipal or 20 quasi-municipal supplier prior to said date, then such land 21 owners shall be.deemed to have consented to the withdrawal by 22 that water supplier of all such ground water underlying their 23 land, except that no such consent shall be deemed to be given 24 if, prior to January 1, 1985, such ground water has been 25 decreed, pennitted, conveyed or reserved to others, or if,

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prior to said date, such consent has been given or reserved in

2 orb,:' )a~f.YJ ordinance or resolutiQJL.

l SECTION 4. 37-82-101 _,. ·(1), Colorado Revised Statutes, as 2 amended, is amended to read:

3 37-82-101. Waters of natural surface streams subject to 4 appropriation. (1) The water of every natural stream, as 5 referred to in sections 5 and 6 of article XVI of the state 6 constitution, includes all the water occurring within the 7 state of Colorado which is in or tributary to a natural 8 surface stream, BUT DOES NOT INCLUDE NONTRIBUTARY GROUND WATER 9 AS THAT TERM IS DEFINED IN SECTION 37-90-103. +he--waiel's--ef

10 AaiHl'a~--sil'eaMs-el-Ge~el'aae-ae-Rei-4Re~Hae-HR&el'!1'8HR&-watel's

11 Aei-4A-el'-il'thHial'y-ie-RaiHl'l~-SHl'faee-Sil'@l"'9-ft81'-Hft8@1'!1'8Hft8

12 waiel's-wh4ehy-wheR--w4th&l'IWRy--ae--Rei--4M,a41'--•he--f~ew--ef

13 AliHl'a~--SHl'faee--s•l'ea!RST All waiel'S-A8i-4R-81'-il'thHill'Y·•e-a

14 AaiHl'a~--sil'eaM,--as--aesel'4hea--+R---th4s---sHhseei4eR---~~~T

15 NONTRIBUTARY GROUND WATER shall be subject to such 16 administration and use as the general assembly may provide by 17 law. Such nontributary waters, when released from the dominion 18 of the user, become a part of the natural surface stream where 19 released, subject to water rights on such stream in the order 20 of their priority.

21 SECTION 5. 37-92-102 (1) (a), Colorado Revised Statutes, 22 is amended to read:

23 37-92-102. Legislative declaration. (1) (a) 'It is 24 hereby declared to be the policy of the state of Colorado that 25 all water in or tributary to natural surface streams, NOT 26 INCLUDING NONTRIBUTARY GROUND WATER AS THAT TERM IS DEFINED IN 27 _{SECTION 37-90-103, originating in or flowing into this state}

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1 have always been and are hereby declared to be the property of 2 the public, dedicated to the use of the people of the state, 3 subject to appropriation and use in accordance with sections 5 4 and 6 of article XVI of the state constitution and this 5 article. As incident thereto, it is the policy of this state 6 to integrate the appropriation, use, and administration of 7 underground water tributary to a stream with the use of 8 surface water in such a way as to maximize the beneficial use 9 of all of the waters of this state.

10 SECTION 6. 37-92-203 (1), Colorado Revised Statutes, as 11 amended, is amended to read:

12 37-92-203. Water judges - jurisdiction. (1) There is 13 established in each water division the position of water judge 14 of the district courts of all counties situated entirely or 15 partly within the division. Said district courts collectively 16 acting through the water judge have exclusive jurisdiction of 17 water matters within the division, and no judge other than the 18 one designated as a water judge shall act with respect to 19 water matters in that division. Water matters shall include 20 only those matters which this article and any other law shall 21 specify to be heard by the water judge of the district courts. 22 Water matters include determinations of rights to nontributary 23 ground water outside of designated ground water basins. 24 Judgments and decrees entered prior to Qe,e~e~-~~y--~98~ JULY 25 1, 1985, in accordance with the procedures of sections 26 37-92-302 to 37-92-305 with respect to such ground water shall 27 be given full effect and enforced according to the terms of

1 such decrees.

2 SECTION 7. 37-92-305, Colorado Revised Statutes, as

3 amended, is amended BY THE ADDITION OF A NEW SUBSECTION, to

4 read:

5 37-92-305. Standards with respect to rulings of the

6 referee and decisions of the water judge. (11) The general

7 assembly finds and declares that the withdrawal of

8 nontributary ground water will not materially affect vested

9 water rights to the flow of any natural stream. Nontributary

10 ground water shall not be administered in accordance with

11 priority of appropriation, and determinations of rights to

12 nontributary ground water need not include a date of

13 initiation of the withdrawal project. Such determinations

14 shall not require subsequent showings or findings of

15 reasonable diligence, and such determinations entered prior to

16 July 1, 1985, which require such showings or findings shall

17 not be enforced to the extent of such diligence requirements

18 on or after said date. Rights to the use of such ground water

19 pursuant to all such determinations shall be deemed to be

20 vested property rights.

21 SECTION 8. Effective date. This act shall take effect

22 July 1, 1985.

23 SECTION 9. Safety clause. The qeneral assembly hereby

24 finds, determines, and declares that this act is necessary

25 for the iRITlediate preservation of the public peace, health, 26 and safety.