A landowner, or a party with proper consent, may claim and withdraw ground water from the Denver Basin bedrock aquifers. The right to claim and withdraw this water can be recognized in the Water Court or by the Colorado Ground Water Commission, if located within a Designated Basin. This may be done by a private individual, a commercial entity, a quasi-governmental agency, or a municipality, among others. To understand this process, it may be best to first understand the Denver Basin itself. The following discussion provides references to the Colorado Revised Statutes (C.R.S.) where appropriate.
Denver Basin Description
The Denver Basin is a unique geologic formation along the Front Range reaching generally to Colorado Springs on the south, Greeley on the north, the Foothills on the west, and Limon on the east. The Denver Basin is composed of aquifers, or water bearing formations, that lie one on top of the other in layers. Between the layered aquifers, there is a “confining” layer. This confining layer isolates the individual aquifers from each other. There is ground water in the aquifers underlying the land in the Denver Basin. The ground water was deposited millions of years ago when the Denver Basin was formed. Because of the nature of the confining layers and because of the limited connection between these aquifers and surface water, the ground water in the aquifers is not renewable. When the ground water is used, it is being “mined” or used up without any replacement.
In 1985, Senate Bill 5 provided a new framework to guide the appropriation of this ground water. The State Engineer, the Director of the Colorado Division of Water Resources, adopted Rules in 1986 to carry out the provisions of this act. The aquifers in the Denver Basin are called the Dawson, Denver, Arapahoe, and Laramie-Fox Hills aquifers. The Dawson and Arapahoe aquifers are differentiated into Upper and Lower aquifers in some areas to the north. Using Senate Bill 5 and the associated rules, along with other state statutes, the Colorado Division of Water Resources (DWR), the water courts in Divisions 1 and 2, and the Colorado Ground Water Commission, made decisions on the amount of water individuals may use and how that water may be used.
Senate Bill 5 and the associated rules identified locations where the use of ground water from the Denver Basin would have a minimal effect on the surface water system. An aquifer with this characteristic is legally identified as nontributary. To be identified as nontributary, a measurement of the effect on the surface water system must be below a statutory threshold for the ground water at that location. Nontributary ground water may be used without developing a plan for mitigating effects to the surface water system.
Use of Denver Basin Water
Prior to 1973, withdrawal of Denver Basin ground water was limited primarily by an assessment of proximity to other ground water appropriations in the same aquifer. A party could, therefore, appropriate large quantities of ground water from an aquifer, regardless of the amount of land that party owned. In 1973, the state legislature created provisions for determining the amount of water that a party could claim and withdraw from the Denver Basin aquifers. As a result of Senate Bill 213, effective July 6, 1973 [C.R.S. 37-90-137(4) and 37-90-107(7)], a landowner is limited to withdrawing only that water determined to be underlying the owned land, or land owned by another who has given consent. Additionally, Senate Bill 213 limits annual withdrawal to one percent of what is determined to be available underlying the owned land.
These two premises – quantity based on water actually underlying the land and annual withdrawal limited to one percent of the total amount – are also used to allow the uses permitted for many individual on-lot wells that use Denver Basin ground water.
Therefore, the owners of land (in most cases), private or public, in the Denver Basin have a statutory right to the ground water underlying their land. However, there are certain conditions that qualify that right, for example how much of the water has been previously claimed or appropriated, how the water may be used, and what augmentation or replacement requirements should be imposed, among others.
Obtaining Denver Basin Ground Water Rights
State law [Section 37-92-302(1)(a), C.R.S.] allows the owner of land in the Denver Basin to apply for a determination of water right for the Denver Basin ground water. Such a right will be determined by the water court unless the land lies within the Designated Basins. If the land is located in the South Platte River Basin, the Division 1 Water Court in Greeley will do the determination. If the land lies in the Arkansas River Basin, the Division 2 Water Court in Pueblo will do the determination. If the land lies within the Designated Basins, the right will be determined by the Colorado Ground Water Commission.
Responsibility of the Division of Water Resources
Outside the Designated Basins:
When a party applies to the water court to adjudicate Denver Basin ground water, DWR has two primary responsibilities. First, representatives of DWR are required to file a consultation report with the water court [C.R.S. 37-92-302(4)]. This report to the water court will state the concerns that DWR has with the application for water rights and advise the applicant as to the issues that must be addressed in the application. If the representatives of DWR feel that there are significant issues in the application and that significant changes must be made, the State Engineer may file a Statement of Opposition to the water court application [C.R.S. 37-92-302(1)(b)].
Second, DWR will file its Determination of Facts report to the water court [C.R.S. 37-92-302(2)(a)]. This report will provide the court with DWR’s position on important aspects of the water right including amount of water legally available from each aquifer, existing appropriations, nontributary vs. not-nontributary status, and depths to the aquifers. The Determination of Facts report is presumptive on the water court, which means that the information is presumed to be the best information available unless rebutted by other parties [C.R.S. 37-92-305(6)(b)]. After considering all responses, the water court will then act on the application.
Within the Designated Basins:
When a party applies to the Ground Water Commission to allocate Denver Basin ground water within the Designated Basins, the Ground Water Commission staff at DWR has the primary responsibility of evaluating the application including evaluating the amount of water legally available from each aquifer existing appropriations, nontributary vs. not-nontributary status, and depths to the aquifers. Upon giving the applications favorable consideration, the staff will send notice of the applications to be published in the local county paper. Provided no objections are received during the comment period, the staff may issue a Determination of Water Right for each aquifer applied for.
Outside the Designated Basins:
A landowner in the Denver Basin may be issued a well permit from DWR to withdraw Denver Basin ground water with or without a decree from the water court. If a decree has been granted, then the evaluation of a well permit application is primarily a matter of ensuring that the ground water will be withdrawn and used in a manner consistent with the decree. If a decree has not been granted, then the well permit application will be evaluated in accordance with applicable state statutes, rules and policies of the State Engineer.
Within the Designated Basins:
Upon issuance of a Determination of Water Right within the Designated Basins, the owner may apply for a well permit to withdraw water from these Denver Basin aquifers. An approved Determination of Water Right is required for an aquifer before we can issue a permit, with the exception of small capacity well permits.