Water Rights in Colorado Surface Water, Ground Water, and
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Water Rights in Colorado: Surface Water, Ground Water, and Well Permitting June 28, 2007 By Kevin Rein, P.E. www.water.state.co.us Discussion Division of Water Resources Colorado Water and its Administration Ground Water and the Denver Basin Well Permitting Questions Department of Natural Resources Agencies Water Resources Water Wildlife Conservation Oil and Gas Board Conservation State Parks Commission Reclamation, Geological Survey Mining, and Forestry Safety State Land Board Progressive Responsibilities Water Administration Public Safety Water Well Permitting Interstate Compacts Hydrographic Program Public Information Services Additional Program Activities The Hydrologic Cycle COLORADO HISTORICAL AVERAGE ANNUAL STREAM FLOWS 403,400 (acre feet) 311,100 111,800 E 414,300 AK NO. PLATTE LA SN RA 404,600 265,800 K 99,500 MIE LE 1,127,000 EL T LIT 1,531,000 CAC 875,600 YAMPA HE LA PO 634,500 UD RE 334,400 158,800 TE ST. V LAT 6 45,590 RAIN TH P WHITE 476,300 SOU 31,680 54,760 404,400 229,200 85,540 NORTH FORK PICEANCE ER BOULD REPUBLICAN 204,400 WEST TOWARD PACIFIC OCEAN 9,189,550 af 555,200 27,700 329,200 185,200 50,050 EAST TOWARD ATLANTIC OCEAN 1,050,900 af BLUE 413,200 33,760 1 N EAGLE BEAR 270,500 CA 28,750 BLI PU RE 5 879,800 NO. FOR K FO RK At Benkelman, NE ROARING 126,800 TH FORK SOU COLORADO 58,146 2,799,000 88,051 63,038 279,700 4,500,000 K FOR NO. 330,500 FOUNTAIN 547,300 1,872,000 943,000 505,600 528,200 69,750 2 699,200 219,800 DOLORES GUNNISON 125,100 ARK UN ANS 89,820 172,000 AS GRAPE TOMICHI CO SA 164,200 N MP M IG 4 3 26,930 AHG UE L 24,933 RE 394,300 HUERFANO 18,970 PA 153,000 653,300 47,020 HA E IR 96,300 IS 313,200 RIO O AP GR AT AN 7 152,600 DE RG 593,600 RK H FO UT PU ORIDA SO McELMO 291,200 37,100 LOS PINOS RA A 49,640 ANIMAS & FL 31,890 LA PLAT SA ED CONEJOS 322,100 N PI AN JU MANCOS JU AN N -C SA HA MA 268,600 235,800 36,890 25,580 173,700 446,900 94,180 670,100 + 291,200 TOTAL LEAVING COLORADO 10,240,450 af Prepared by the Hydrographic Branch (2003 Revision) OFFICE OF THE STATE ENGINEER Historic averages obtained from USGS Water-Data Report CO-02 COLORADO DIVISION OF WATER RESOURCES 19 States Rely on Colorado Water In 1879, Colorado established Water Commissioners to distribute water rights in priority based upon principle of “First In Time...First In Right” Article XVI, Section 6, State Constitution “The right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied. Priority of appropriation shall give the better right as between those using the water for the same purpose… “ Colorado’s Water Administration System Prior Appropriation Doctrine means those that put the water to use first are entitled to get their water first during periods of water shortage. In Colorado, water is a separate property right that can be sold separately from the land. This is opposed to the Riparian Doctrine that recognizes water rights being attached to lands adjacent to the river or stream. Water Deliveries in Colorado Agriculture 86% Municipal/Domestic 7% Recreation/Fisheries 3% Industrial/Commercial 2% Augmentation 1% Recharge 1% WATER MANAGEMENT ISSUES Agricultural Wells on the South Platte River A brief history of the events that have led to the current status of the wells on the South Platte River Roles of various agencies and other parties Brief History 1965 Act/House Bill 1066 In 1965 the Colorado General Assembly passed House Bill 1066 and enacted the Colorado Ground Water Management Act (“1965 Act”). Gave the State Engineer the authority to evaluate the use of ground water and deny a well permit Brief History 1969 Act In 1969, the Colorado General Assembly enacted the Water Rights Determination and Administration Act (“1969 Act”). Reinforced recognition of the connection between ground water and surface water. Integrated ground water into the priority system – Introduced the concept of plans for augmentation Brief History 1974, 1977 In 1974, the legislature adopted Senate Bill 7. Senate Bill 7 authorized the State Engineer to approve temporary plans for augmentation. In 1977, the provisions of Senate Bill 7 allowing this authority were repealed. Brief History Basin Specific Rules (Examples) Arkansas River Rules South Platte Rules Reinforced statutory requirement of augmentation plans (permanent or temporary) State Engineer continued to approve temporary Substitute Water Supply Plans…for a period of 27 years. Brief History Recent Events Empire Lodge Decision 2001 South Platte Specific May 30, 2002, the State Engineer filed an application to the water court (2002CW108) to promulgate Amended Rules of the South Platte River. The judge (December 30, 2002) and the Supreme Court (April 30, 2003) ruled against the State Engineer Concurrently, in the 2002 legislative session, the legislature enacted House Bill 02-1414 Brief History HB-1414 provided the statutory provisions in C.R.S. 37-92-308. 37-92-308(3) (“renewals”) 37-92-308(4), (new SWSPs) Water court application Plan to the SEO Notification (Objectors) One-year approval Brief History 37-92-308(5), five-year depletions No water court application Plan to the SEO Notification (SWSP Notification List) One-year approval 37-92-308(7), Public health and safety. Plan to the SEO No notification is required 90-day approval Brief History 2003, House Bill 03-1001 modified portions of 37-92-308. Specifically: Changes of water rights ‘Notify’ parties on the SWSP Notification List for 37-92-308(4) plans Brief History 2003, Senate Bill 03-73 modified portions of 37-92-308. Specifically: New 308(3), temporary approval of SWSP without water court application Wells in the South Platte Basin Previously in a SWSP Through December 31, 2005 Notify parties on the SWSP Notification List One-year approval The statute requires that a hearing be held by the state engineer for these approval requests It provided for the approval of plans using augmentation wells, only under strict conditions. Current Process In 2001, 18-20 SWSPs. In 2006, more than 100 (South Platte Basin). Many wells from larger plans “broke off” into smaller plans Water users whose plans had lapsed or who did not previously have plans were being exposed Approval takes more time and effort Increased detail Statute makes the submittal/approval process more rigid Input from other parties Changes were coincident with drought. South Platte Basin Description Total South Platte River basin drainage area - 23,138 sq. miles Precipitation average - 10 to 17 inches per year Elevation - 3,400 to 14,000 + Ft Irrigated acreage - 1.1 million acres South Platte Basin Description Native flows for total basin estimated by the USGS to be 1,400,000 acre-feet annually Transbasin water provides approximately another 400,000 acre-feet Ground water pumping from high capacity alluvial wells located along the South Platte is estimated to provide approximately 640,000 acre-feet Total annual surface water diversions equal approximately 4,000,000 acre-feet General Statistics Approximately 9,000 high capacity wells in South Platte River and its tributaries Approximately 5,000 high capacity wells in substitute water supply plans or plans for augmentation As many as 2,500 wells have been on the enforcement list As many as 1,500 wells to be addressed Engineering Aspects of Well Administration Determining Consumptive Use Determining Well Depletion (impact to river) Determining Replacement Requirements Accounting Enforcement Sources of Replacement Water Fully Consumable Water Reservoir Releases Direct Flow Irrigation Rights Recharge Sites Recharge Wells Augmentation Wells Accounting Plan for Augmentation and Substitute Water Supply Plans (SWSP) must replace all out of priority depletions “Depletions” are what impact the river as a result of diversions at the well Depletions are out-of-priority if there is a call for water (or compact condition) senior to the well downstream of the well location Accounting (continued) Monthly summary must show: Diversions Associated depletions Return flow obligations from reservoir releases, etc. Replacement water from each source (recharge, reservoir delivery, etc.) Net impact on the river Accounting (continued) May be required to submit: Copies of raw data collection forms Modeling input/output Spreadsheets showing formulas, etc. for verification Other information as needed GROUND WATER Types of Wells Ground Water Tributary Non-tributary Denver Basin (not non-tributary) Designated Groundwater Denver Basin and Designated Ground Water Basins Crow Creek & Camp Creek Basins Kiowa-Bijou Irrigation and Domestic water is from both Irrigation water supply is from the Alluvial Aquifer, No Alluvial and Bedrock Aquifers. No surface surface water supply. Domestic supply from both water supply. Alluvial and Bedrock Aquifers. Lack of precipitation may result in increased Lack of precipitation may result in increased pumping pumping and lowing of the water table. This and lowing of the water table. This would lead to higher would lead to higher energy and production energy and production costs. costs. Northern High Plains Lost Creek Irrigation and domestic water Irrigation and supply is from the Ogallala Domestic water is Aquifer. No surface water from both Alluvial supply. and Bedrock Aquifers. No Lack of precipitation may surface water result in increased pumping supply. and lowering water levels. This would lead to higher energy Lack of and production costs. precipitation may result in increased pumping and lowing of the water table. This would Southern High Plains lead to higher energy and Irrigation and domestic water production costs. supply is from the Ogallala, Dakota, Cheyenne and Docum Aquifers. No Denver Basin surface water supply Ground water supply is from the four Lack of precipitation may major Denver Basin Bedrock Aquifers, result in increased pumping Dawson, Denver, Arapahoe and and lowering water levels. Laramie-Fox Hills. The aquifers are This would lead to higher not part of the surface system and are energy and production costs. Upper Big Sandy not affected by drought conditions. Upper Black Squirrel However, in times of shortages in the Irrigation water supply is from the Irrigation water supply is from the Alluvial surface water supply, increased use of Alluvial Aquifer, No surface water Aquifer, No surface water supply. ground water from the basin can result supply. Domestic supply from Alluvial Domestic water supply from Denver Basin and Bedrock Aquifers. in accelerated water level declines Aquifers Lack of precipitation may result in Lack of precipitation may result in increased pumping and lowing of the increased pumping and lowing of the water water table. This would lead to higher table. This would lead to higher energy energy and production costs. and production costs. Nontributary Water in the Denver Basin The Denver Basin is a “layering” of water bearing geologic formations (aquifers) along the front range Given statutory provisions for administration Promulgated rules further guide administration describe physical/hydrologic properties Nontributary Water in the Denver Basin Four aquifers Dawson (Upper and Lower) aquifer Denver aquifer Arapahoe (Upper and Lower) aquifer Laramie-Fox Hills aquifer Nontributary Water in the Denver Basin The Denver Basin contains nontributary and not nontributary ground water Nontributary ground water has a limited connection with the surface water or alluvial ground water systems (statutory threshhold for impact to surface water) Not nontributary ground water is water in the Denver Basin aquifers that does not meet the statutory threshhold Nontributary Water in the Denver Basin Senate Bill 213 (1973) Land area 100-year aquifer life Senate Bill 5 (1985) Promulgated rules further guide administration describe physical/hydrologic properties Exempt/Small Capacity Wells Household Use Only (for most) Domestic (often includes outside uses) Livestock Commercial Existing Unregistered Monitoring and Observation Non-Exempt/Large Capacity Wells Subdivision with Augmentation Plan Irrigation, Municipal, Industrial, and Commercial Pond That Intercepts Ground Water Recovery Wells Geothermal Wells Permanent Dewatering Systems Differences Between Exempt/Small Capacity and Non-Exempt/Large Capacity Wells Exempt/Small Capacity Non-Exempt/Large Not administered Capacity within the priority Administered within system the priority system Water available or (except DB,NT and presumption of no Des. Bas.) material injury Material injury must Uses limited by not occur statute Well spacing limits Most limited to 15 gpm Most require return flow Differences Between a Well Permit and a Decree Well Permit Decree Permit to construct Adjudication of water and use limitations right Issued by DWR Issued by Water Does not convey a Court water right Absolute or Does not guarantee conditional quantity or quality of Does not guarantee water quantity or quality of water Parcel Creation and Water Supply Requirements Pre-June 1, 1972 Parcels Parcels 35 Acres or Larger Subdivision Exemptions Subdivisions Cluster Development Subdivision Referral and Review Senate Bill 35 30-28-133 – Water Supply 30-28-136 - Submittal to SEO for review and comment Outside Denver Basin Inside Denver Basin Subdivision Review Outside Denver Basin Tributary ground water Court-approved augmentation plan required All ground water is assumed to be tributary. Burden is on the applicant to prove otherwise Subdivision Review Inside Denver Basin Not nontributary ground water Court-approved augmentation plan required Non-tributary ground water Water may be decreed or water supply may be based on available water Common ????? If I have a water right or a well permit, does that mean I own the water associated with that right or permit? No. Colorado is a “right to use” state (aka, usurfructuary right) Common ????? Can I get a well on my property if I have other water available to my property? Only if the water provider does not object to us issuing a well permit and the property qualifies for a well permit. Common ????? Can I install a rainwater harvesting system in my yard (e.g., rain barrel)? No. Water is a public resource and must be administered in priority. Can I use gray water? In some cases, yes. But practically, no, due to water quality regulations. Information Resources DWR Web Page (www.water.state.co.us) Ground Water Information (Denver) Records (Denver) Division Offices Water Commissioners Questions? Think Snow!