Colorado Denver Basin Permitting (19-CO-b)
The Colorado Groundwater Commission and the State Engineer from the Colorado Division of Water Resources work together to regulate groundwater withdrawals from the Denver Basin. CRS 37-90-137(9)(a)-(b), C.R.S. 37-80-102(1)(g), Kuiper v. Lundvall, 187 Colo. 40, 529 (1974) (holding that CRS 37-90 is not unconstitutional on the theory that it bestows powers upon the State Engineer and the Colorado Groundwater Commission to grant or refuse a permit to drill a well thereby giving them, in effect, the authority to adjudicate a water right), CRS 37-90-104.
The Denver Basin (i.e., the Dawson, Denver, Arapahoe, and Laramie-Fox Hills aquifers) is a geologic formation in which aquifers lie on top of each other in layers with confining layers separating the aquifers. The groundwater within the Denver Basin was deposited when the Denver Basin was formed and is not renewable. Colorado Division of Water Resources Denver Basin Webpage. As a result, Colorado has implemented special rules for the management and withdrawal of water from the Denver Basin in 2 CCR 402-6 The Denver Basin Rules, as well as statutory laws for well permitting in the Denver Basin in CRS 37-90-137, Permits to Construct Wells Outside Designated Basin and adjudicating Denver Basin groundwater in CRS 37-90-197, Application for Use of Groundwater.
Denver Basin Permitting Process
19-CO-b.1 – Is the Water Nontributary or Not-Nontributary?
The developer must determine whether the source of water is nontributary or not-nontributary to know which rules and permitting processes apply. For instance, for sources of water that are nontributary a developer does not need to obtain a water right. Under CRS 37-90-103(10.5) “nontributary groundwater” is defined as “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 of continuous withdrawal, deplete the flow of a natural stream, including a natural stream as defined in CRS §§ 37-82-101(2) and 37-92-102(1)(b), at an annual rate greater than one-tenth of one percent of the annual rate of withdrawal. The determination of whether groundwater is nontributary is based on aquifer conditions existing at the time of permit application; except that, in recognition of the de minimis amount of water discharging from the Dawson, Denver, Arapahoe, and Laramie-Fox Hills aquifers into surface streams due to artesian pressure, when compared with the great economic importance of the groundwater in those aquifers, and the feasibility and requirement of full augmentation by wells located in the tributary portions of those aquifers, it is specifically found and declared that, in determining whether groundwater of the Dawson, Denver, Arapahoe, and Laramie-Fox Hills aquifers is nontributary, it is assumed that the hydrostatic pressure level in each such aquifer has been lowered at least to the top of that aquifer throughout that aquifer; except that not nontributary groundwater, as defined in CRS 37-90-103(10.5), in the Denver basin shall not become nontributary groundwater as a result of the aquifer's hydrostatic pressure level dropping below the alluvium of an adjacent stream due to Denver basin well pumping activity.” CRS 37-90-103(10.5).
Under CRS 37-90-103(10.7), "not nontributary groundwater" is defined as “groundwater located within those portions of the Dawson, Denver, Arapahoe, and Laramie-Fox Hills aquifers that are outside the boundaries of any designated groundwater basin in existence on January 1, 1985, the withdrawal of which will, within one hundred years, deplete the flow of a natural stream, including a natural stream as defined in sections 37-82-101(2) and 37-92-102(1)(b), at an annual rate of greater than one-tenth of one percent of the annual rate of withdrawal.” CRS 37-90-103(10.7).
In determining whether the water is from a nontributary or not-nontributary source, the developer should consult the Denver Basin Rules for maps and descriptions of the location of nontributary groundwater in the Denver Basin and the Colorado Division of Water Resources.
19-CO-b.2 to 19-CO-b.4 – Is a New Well Needed?
If the developer needs to construct a new well, the developer should initiate the Water Well Permit process (See Flowchart 19-CO-d). CRS 37-90-107. Thereafter, the developer must relinquish 2% of actual pumping as required by CRS 37-90-137(9)(b) Permits to Construct Wells Outside of Designated Basins (i.e., the developer may only consume 98% of nontributary water within the Denver Basin). The developer must demonstrate that the project will relinquish 2% of the actual pumping to the reasonable satisfaction of the State Engineer prior to the State Engineer issuing a well permit. The developer can usually account for the 2% relinquishment through return flows from the consumptive use. CRS 37-90-137(9)(b) Permits to Construct Wells Outside of Designated Basins.
For more information regarding the construction of a new well, see:
19-CO-b.5 to 19-CO-b.8 – Is the Current Well Permitted For the Proposed Use?
Developers may not need a new well permit, if they have a well permit for the same proposed use (i.e. industrial) at the same point of diversion. However, the developer must apply for a permit modification to use the existing well for a new use, if the well is not permitted for the proposed beneficial use. CRS 37-90-111(1)(c).
If the developer intends to use the existing well for a new use, they must file an Colorado Application for a Change of Water Right. In addition, if the developer intends to use the existing well, but must alter the point of diversion, they must file an Colorado Application for an Alternate Point of Diversion. For more information, see:
19-CO-b.9 to 19-CO-b.10 – Is a New Well Needed?
If the developer will need to construct a new well, the developer should initiate the Water Well Permit process. C.R.S. 37-90-137; 2 C.C.R. 402-7 - Non-tributary Groundwater Rules. For more information, see:
Water Well Permit:
19-CO-b.11 – Initiate New Water Right Process for Surface and Tributary Groundwater
The developer should initiate the New Water Right Process for Surface Water and Tributary Groundwater (See Flowchart 19-CO-e) to locate replacement water for the withdrawal of not-nontributary groundwater in the Denver Basin and to adjudicate a water right in or approve a plan of augmentation in the Denver Basin. C.R.S. 37-90-111(1)(c),(1)(g); Colorado Code of Regulations 2 C.C.R. 410-1, Rules and Regulations for the Management and Control of Designated Groundwater. For more information, see:
19-CO-b.12 to 19-CO-b.14 – Is the New Well Less Than One Mile From the Contact Area?
Under CRS 37-90-137(9)(c) developers constructing wells in the Denver, Arapahoe, or Laramie-Fox Hills aquifers within one mile of a point of contact with a natural stream (including its alluvium) on which water rights would be injuriously affected by any stream depletion, must replace the actual depletions with incorporation of actual conditions existing at the time of the application. If the developer constructs the well in the Denver, Arapahoe, or Laramie-Fox Hills aquifers more than one mile from the contact with a natural stream, the developer must replace four percent of the amount of water withdrawn from the aquifer on an annual basis to the affected stream system(s). CRS 37-90-137(9)(c). Additionally, developers constructing wells in the Dawson aquifer must replace actual stream depletion to the extent necessary to prevent any injury (regardless of the distance from the contact with a natural stream) based on actual aquifer conditions in existence at the time of the decree. CRS 37-90-137.
19-CO-b.15 to 19-CO-b.17 – Is the Current Well Decreed and Permitted for the Proposed Use?
If the developer is seeking to use an existing well to withdrawal not-nontributary groundwater that is already decreed and permitted for the proposed use, no permit is needed and the developer may continue with the project. If the current well is not decreed and permitted for a proposed beneficial use, the developer/well owner must initiate the New Water Right Process for Surface Water and Tributary Groundwater to get a proper water right decree for the proposed use and initiate the Water Well Permit process to apply for a permit modification to the existing water well permit. CRS 37-90-137(4); 2 C.C.R. 402-7 - Non-tributary Groundwater Rules; In Re Application for Water Rights of Park County Sportsmen's Ranch, LLP v. Bargas, 986 P.2d 262, 266-267 (Colo. 1999).
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