Colorado Water Access and Water Rights (19-CO-a)
In Colorado, the system of prior appropriation, known as the Colorado Doctrine (Doctrine) governs all surface and tributary groundwater. Colorado Constitution Art. XVI, §§ 5, 6; CRS 37-82-101; CRS 37-92-102. The Doctrine contains four essential principles:
- “All surface and tributary groundwater in Colorado is a public resource for beneficial use by public agencies and private persons;
- A water right is a right to use a portion of the public’s water resources;
- Water right owners may build facilities on the lands of others to divert, extract, or move water from a stream or aquifer to its place use; and
- Water right owners may use the streams and aquifers for the transportation and storage of water.”
Similar to many western states, only a small amount of water is available for appropriation in Colorado. As a result, Colorado has a complex regulatory scheme for the distribution of water rights and the use of water in the state. “The basic tenant of the Colorado appropriation system is “first in time, first in right.” An agency or individual appropriates water by physically taking the water from the stream and transports (diverting) it to another locale for beneficial use. The first person to appropriate water and apply that water to a beneficial use has the right to use that water within a particular system. The senior water right user, or first appropriator, must then be satisfied before any other junior rights are fulfilled.” Only by diversion and beneficial use can a developer obtain a priority of right, and in the absence of such, only the first appropriator for a beneficial purpose has a priority to such diversion.
Depending on the source of water supply and the use of the water, the developer may need a water right, a well permit, or approval of a water replacement plan either adjudicated by the designated water court, or from the Colorado Groundwater Commission (State Engineer’s Office). CRS 37-80-101-111; Colorado Code of Regulations 2 C.C.R. 410-1, Rules and Regulations for the Management and Control of Designated Groundwater; CRS 37-92-301, Water Rights Determination and Administration Act of 1969; Colorado-C.R.S. 37-90 et seq., Colorado Groundwater Management Act.
Pursuant to Section 37-90.5-107, C.R.S. (2003), the appropriation of geothermal fluids to recover geothermal resources is recognized as a beneficial use of groundwater. However, the State Engineer may waive the permit to appropriate requirement for a diversionary utilization method that is non-consumptive and will not impair valid, prior water rights.
Where the geothermal facility requires a consumptive use of water or for ancillary water uses involved in geothermal development, such as cooling water or water for dust suppression, the developer will need to obtain access to water or a water right.
A developer may need a water right to store or use surface or groundwater. Colorado considers power generation a beneficial use, along with commercial, industrial, and water storage uses, instream flows, and dust suppression. Colorado Small Hydropower Handbook, at p. 10; Citizens Guide to Colorado Water Law, at p. 7. Colorado may consider the water use for hydropower generation a consumptive use, if the project requires the construction of a reservoir to the hold water or a canal feeds the hydropower plant or pumped storage facility due to resulting evaporation or absorption. Colorado Small Hydropower Handbook, at p. 10. The State Engineer may also consider a hydropower project a consumptive water use for most surface diversions through a canal or other means.
A Plan for Augmentation is a water court approved plan designed to protect senior water rights, while allowing junior water rights to divert water out-of-priority. C.R.S. 37-92-103(9), Definitions. This longer-term plan allows an out-of-priority water right to continue to divert water by providing replacement water to senior water rights for that diversion. Synopsis of Colorado Water Law, at p.21. A SWSP is similar to Plans for Augmentation. A developer would also use a SWSP to quantify river depletions and injury to senior water rights holders for new users of water and provide for replacement water to offset this injury. The fundamental difference between a Plan for Augmentation and a SWSP is that C.R.S. 37-92-308, Substitute Water Supply Plans gives the State Engineer the authority to approve temporary operation of a Plan for Augmentation, through a SWSP. In addition, C.R.S. 37-92-308, Substitute Water Supply Plans gives the State Engineer the authority to approve a temporary Change of Water Right, through a SWSP. Therefore, a SWSP provides a developer a mechanism to replace out-of-priority depletions on an interim basis. An SWSP also allows temporary changes of use and in the case of permanent changes, the protection of other water rights during litigation involving water change cases and augmentation plans. Colorado Policy 2003-2 - Implementation of Section 37-92-308, Regarding Substitute Water Supply Plans.
Oftentimes, buying, or transferring (leasing, renting, etc.) a consumptive water right requires a change in the historic/decreed use of the water. C.R.S. 37-92-103(5), Definitions. As a result, a developer will likely need to apply for a Change in Water Right. C.R.S. 37-92-302, Applications of Water Rights or Changes of Such Rights- Plans for Augmentation. In addition, many times as a condition of a consumptive water use, a water user must replace the depletion (water consumed and not returned back to the stream or aquifer). Colorado statutes provide for two basic types of water replacement plans: Plans for Augmentation and Substitute Water Supply Plans (SWSP). C.R.S. 37-92-308, Substitute Water Supply Plans; C.R.S. 37-92-302, Applications of Water Rights or Changes of Such Rights- Plans for Augmentation.
Water Access and Water Rights Process
19-CO-a.1 - Calculate Project Need
The developer will need to contact a water engineer/consultant to calculate the amount of water the project (e.g. exploration, drilling, construction, etc.) will require. Colorado Department of Natural Resources Guide to Colorado Well Permits, Water Rights, and Water Administration.
This calculation will help dictate the beneficial use of the water need. Need is a combination of the amount required to move water to the place where it will be used and the amount required by the actual use. Citizens Guide to Colorado Water Law, at p.8.
19-CO-a.2 – Locate Appropriate Source of Water Supply
The developer with the assistance of the water engineer/consultant must locate an appropriate source of water supply based on the project’s water needs. Whether the source of water is groundwater, surface water, or located within a designated groundwater basin will dictate the permitting process. See, generally Colorado Department of Natural Resources Guide to Colorado Well Permits, Water Rights, and Water Administration.
19-CO-a.3 – Is the Supply from a Short-Term Lease Supplier with an Already Decreed Water Right?
If the developer obtains water through a short-term lease supplier with an already decreed water right, the developer may be able to continue the project without obtaining a new water right or a new well permit, if the water supply is already decreed and/or permitted for the proposed use(s).
19-CO-a.4 to 19-CO-a.5 – Is the Supply Decreed and/or Permitted for the Proposed Use?
If the developer will receive water from a short-term lease, in which the supply is already decreed and/or permitted for the proposed use (i.e. likely industrial use), the developer will not need a permit or new decree and may continue with the project. However, if the water supply is not decreed and/or permitted for the proposed use, the developer must continue through the flowchart to find the process for the type of water the developer will acquire (i.e., Denver Basin, Designated Basin, Denver and Designated Basin, Surface).
19-CO-a.6 – Is the Supply from a Municipal Supply or Other Governmental Supplier?
If the developer will obtain the water from a local municipality, the developer may purchase water from the municipality through a tap fee, and in most cases, continue with the project without obtaining a water right or well permit. Additionally, the developer may obtain water from a water district, water and sanitation district, metropolitan district, or a water conservancy district. However, if the water supply is not decreed and/or permitted for the necessary use, the developer must continue through the flowchart to find the process for the type of water the developer will appropriate.
19-CO-a.7 to 19-CO-a.10 – Is the Source of Supply from a Designated Groundwater Basin?
If the source of water is from a designated groundwater basin (see Designated Groundwater Basin Map), the developer must determine whether the water supply is in the Denver Basin within the designated groundwater basin or is outside of the Denver Basin in the designated groundwater basin (see Denver Basin Map).
If the water supply is within a designated groundwater basin, but not in the Denver Basin, the developer should consult flowchart 19-CO-c - Designated Groundwater Basin Water Right and Well Permit.
If the water supply is within the designated basin and the Denver Basin, the developer should consult flowchart 19-CO-h - Denver Basin and Designated Basin Water Right and Well Permit.
19-CO-a.11 to 19-CO-a.12 – Is the Water Being Diverted from the Denver Basin?
If the developer will divert water from the Denver Basin (outside of a Designated Groundwater Basin), the developer should consult the Denver Basin Permitting Process flowchart. (see Denver Basin Map).
19-CO-a.13 – Is the Supply Determined to be Nontributary?
If the Colorado Division of Water Resources has already determined the supply source to be nontributary groundwater, the developer must determine whether diverting the source will require a new well." Nontributary groundwater is groundwater located outside the boundaries of any designated groundwater basins in existence on January 1, 1985, the withdrawal of which will not, within one hundred years, deplete the flow of a natural stream...at an annual rate greater than on-tenth of one percent of the annual rate of withdrawal." C.R.S. §37-90-103(10.5); In Re Application for Water Rights of Park County Sportsmen's Ranch, LLP v. Bargas, 986 P.2d 262, 266 (Colo. 1999). .
19-CO-a.14 to 19-CO-a.18 – Is a New Well Needed?
If diverting the groundwater will require a new well, the developer should consult the Water Well Permit process flowchart. Even if the developer has access to an existing well, the developer may need to apply for a well permit modification and initiate the Water Well Permit process or change an existing water decree if the permitted use is different from the developer's intended use. If the current well is permitted for the proposed use, the developer will not need a permit and may continue with the project.
19-CO-a.19 to 19-CO-a.20 – Does the Developer Wish to Petition for Nontributary Groundwater Status?
Most water in Colorado, whether surface water or groundwater, is considered to be tributary to a natural stream and is administered within the prior appropriation system, unless the State Engineer has determined the water to be nontributary. A well permit applicant seeking a determination that the groundwater for which the developer is seeking a well permit is nontributary, must petition to the State Engineer for nontributary groundwater status. Under CRS 37-90-103(10.5) the determination of whether groundwater is nontributary must be based on aquifer conditions existing at the time of the well permit application. See flowchart 19-CO-i Determination of Nontributary Groundwater Status.
19-CO-a.21 to 19-CO-a.22 – Will the Water Use Affect a Stream Flow or Surface Water Level?
The Colorado Water Conservation Board (CWCB) may have an existing in-stream water right for the purposes of maintaining minimum flows in rivers or lakes. C.R.S. § 37—92-102, Legislative Declaration-Basic Tenets of Colorado Water Law.
If the CWCB has an in-stream water right, the developer should consider the affect the water use may have on stream flows or natural surface water levels, or volumes for natural lakes, even if the water right is non-consumptive. For example, for hydropower projects there may be a portion of the river or stream between the intake and the discharge where in-stream flows cannot be reduced. Small Hydropower Handbook, at p. 4.
Note, the Colorado Supreme Court in Colorado Water Conservation Board v. City of Central (Co. 2005) found that CWCB has the right to protect stream reaches from changes in stream conditions caused by water right changes and plans for augmentation, including exchanges. Colorado Water Conservation Board v. City of Central, at 440.
19-CO-a.23 to 19-CO-a.25 – Will the Source of Water be a Previously Decreed Water Right that Needs to be Changed?
If the source of water supply is a previously decreed water right that the developer will need to change, the developer will need to have a water engineer/consultant conduct a historical use analysis of the water right and present terms and conditions to prevent injury. Regardless if the source of water supply is a previously decreed water right or a new water right, the developer should consult the New Water Right Process for Surface Water and Tributary Groundwater Rights flowchart.
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- Colorado Constitution
- Colorado – C.R.S. 37-82 et seq., Appropriation and Use of Water
- Colorado – C.R.S. 37-92 et seq., Water Right Determination and Administration Act
- Colorado – C.R.S. 37-80 et seq., State Engineer
- Colorado-C.R.S. 37-90 et seq., Colorado Groundwater Management Act
- Colorado - C.R.S 37-90.5-107, Geothermal Drilling Permits
- Colorado Code of Regulations 2 C.C.R. 410-1, Rules and Regulations for the Management and Control of Designated Groundwater
- Colorado - 2 CCR 402-10, Geothermal Rules and Regulations, Rule 3.4
- Colorado Water Conservation Board v. City of Central (Co. 2005)
- Denver Basin Map
- Designated Groundwater Basin Map
- Colorado Water Courts
- Citizen’s Guide to Colorado Water Law
- Colorado Division of Water Resources, Synopsis of Colorado Water Law
- Colorado Energy Office, Small Hydropower Handbook
- Colorado Division of Water Resources, Synopsis of Colorado Water Law
- Colorado Department of Natural Resources Guide to Colorado Well Permits, Water Rights, and Water Administration
- In Re Application for Water Rights of Park County Sportsmen's Ranch, LLP v. Bargas, 986 P.2d 262 (Colo. 1999)