Colorado § 37-90-106 - Determination of designated groundwater basins - exception - legislative declaration.

§ 37-90-106. Determination of designated groundwater basins - exception - legislative declaration.

(1) (a) The commission shall, from time to time as adequate factual data become available, determine designated groundwater basins and subdivisions thereof by geographic description. If factual data obtained after the designation of a groundwater basin justify, the commission may alter the boundaries or description of that designated groundwater basin by adding lands to the basin. After a determination of a designated groundwater basin becomes final, the commission may alter the boundaries to exclude lands from that basin only if factual data justify the alteration and the alteration would not exclude from the designated groundwater basin any well for which a conditional or final permit to use designated groundwater has been issued. The general assembly hereby finds, determines, and declares that allowing alterations to exclude lands from a designated groundwater basin only under such circumstances as set forth in this paragraph (a) reaffirms, rather than alters, the general assembly's original intent that there be a cut-off date beyond which the legal status of groundwater included in a designated groundwater basin cannot be challenged, and that such cut-off date was intended to be the date of finality for the original designation of the basin. After this cut-off date has passed, any request to exclude wells that are permitted to use designated groundwater from an existing groundwater basin shall constitute an impermissible collateral attack on the original decision to designate the basin.

(a.5) Nothing in Senate Bill 10-052, enacted in 2010, shall affect litigation brought under this section that is pending on January 1, 2010.

(b) In making such determinations the commission shall make the following findings:

(I) The name of the aquifer within the proposed designated basin;

(II) The boundaries of each aquifer being considered;

(III) The estimated quantity of water stored in each aquifer;

(IV) The estimated annual rate of recharge;

(V) The estimated use of the groundwater in the area.

(2) If the source is an area of use exceeding fifteen years as defined in section 37-90-103 (6), the commission shall list those users who have been withdrawing water during the fifteen-year period, the use made of the water, the average annual quantity of water withdrawn, and the year in which the user began to withdraw water.

(3) Before determining or altering the boundaries of a designated groundwater basin or subdivisions thereof, the state engineer shall prepare and file in his office a map clearly showing all lands included therein, together with a written description thereof sufficient to apprise interested parties of the boundaries of the proposed basin or subdivisions thereof. The commission shall publish the same and hold a hearing thereon. Following such hearing, the commission shall enter an order to either create the proposed designated groundwater basin, to include modification of the proposed boundaries, if any, or dismiss the original proposal, according to the factual information presented or available.

(4) (a) The commission shall not, after May 23, 1983, determine as part of any designated groundwater basin any groundwater within the Dawson-Arkose, Denver, Arapahoe, or Laramie-Fox Hills formations which was located outside the boundaries of any designated groundwater basin that was in existence on January 1, 1983.

(b) (I) However, the commission may determine as a part of any designated groundwater basin any groundwater in the Crow Creek drainage area in Weld county, upstream from the confluence of Crow Creek and Little Crow Creek, within the Laramie-Fox Hills formation when the Laramie-Fox Hills formation is not overlaid by the Dawson-Arkose, Denver, or Arapahoe formations.

(II) If, upon receipt by the state engineer of the findings of the Laramie-Fox Hills study, as authorized by Senate Bill 250, 1985 legislative session, that the upper Crow Creek drainage area in Weld county, upstream from the confluence of Crow Creek and Little Crow Creek, within the Laramie-Fox Hills formation when the Laramie-Fox Hills formation is not overlaid by the Dawson-Arkose, Denver, or Arapahoe formations should not be a designated groundwater basin, this paragraph (b) is repealed.

Source: L. 65: R&RE, p. 1249, § 1. C.R.S. 1963: § 148-18-5. L. 71: pp. 1312, 1318, §§ 4, 17. L. 83: (3) added, p. 1414, § 2, effective May 23. L. 85: (3) amended, p. 1171, § 2, effective July 1. L. 2010: (1)(a) amended and (1)(a.5) added, (SB 10-052), ch. 63, p. 223, § 1, effective August 11.

Editor's note: (1) This section was renumbered on revision in preparation of the C.R.S. 1973 and again in preparation of the 1990 replacement volume to conform to standard C.R.S. numbering format, resulting in the renumbering of subsection (3), as enacted in House Bill 83-1399 and as amended in House bill 85-1173, to subsection (4).

(2) The upper Crow Creek drainage area is a designated groundwater basin (see rule 5.2.9 of the ground water commission, 2 CCR 410-1). Therefore, subsection (4)(b) is not repealed.

Cross references: For the authorization by Senate Bill 85-250 as specified in subsection (4)(b)(II) of this section, see p. 1452 and footnote 70 on p. 1487 of the 1985 general appropriation act, chapter 344, Session Laws of Colorado 1985.

ANNOTATION

Law reviews. For article, "Ground Water Mining Law and Policy", see 53 U. Colo. L. Rev. 505 (1982). For comment, "No Seat at the Water Table: Colorado's New Groundwater Basin Statute Leaves Senior Surface Rights in the Lurch", see 84 U. Colo. L. Rev. 819 (2013).

By terms of the act, administration and enforcement are placed in the ground water commission, the state engineer, and locally formed ground water management districts; the ground water commission, composed of twelve voting members, possesses the authority to create "designated ground water basins". North Kiowa-Bijou Mgt. Dist. v. Ground Water Comm'n, 180 Colo. 314, 505 P.2d 377 (1973).

Commission to categorize ground water as "underground water" or "designated ground water". The general assembly left categorization of ground water as "underground water" or as "designated ground water" as a factual matter to be resolved by the ground water commission when it established designated ground water basins. Pioneer Irrigation Dists. v. Danielson, 658 P.2d 842 (Colo. 1983).

Commission is appropriate forum. The ground water commission is the appropriate forum for determining whether disputed ground water is designated ground water located in a designated ground water basin. Pioneer Irrigation Dists. v. Danielson, 658 P.2d 842 (Colo. 1983); In Matter of Water Rights, 2015 CO 64, 361 P.3d 492.

Not all water in basin conclusively ground water. The creation of a designated ground water basin does not establish conclusively that all ground water in the basin is designated ground water. State ex rel. Danielson v. Vickroy, 627 P.2d 752 (Colo. 1981).

The burden of proving water not ground water upon proponent. After the creation of a designated ground water basin, the proponent of the proposition that certain ground water within the basin is not designated ground water has the burden of proving that proposition. State ex rel. Danielson v. Vickroy, 627 P.2d 752 (Colo. 1981).

The ground water commission's jurisdiction over surface water rights is limited to altering a designated ground water basin's boundaries to exclude any ground water hydrologically connected to the surface water rights that the commission improperly included in the designated ground water basin. The commission must so alter the boundaries upon a showing that pumping the ground water has more than a de minimis impact on the surface rights and is injuring the rights. The state engineer and the water courts then have jurisdiction over the ground water. Gallegos v. Colo. Ground Water Comm'n, 147 P.3d 20 (Colo. 2006) (decided under former law).

Water court properly dismissed constitutional claim for lack of subject matter jurisdiction. Jurisdiction vests in the water court only if the Colorado ground water commission first concludes that the water at issue is designated groundwater. Jim Hutton Educ. Found. v. Rein, 2018 CO 38M, 418 P.3d 1156.

To justify the alteration of the boundaries of a designated groundwater basin, a plaintiff must present evidence that was not before the commission when it originally designated the basin. Prior to its amendment in 2010, subsection (1)(a) specified that the commission can alter the boundaries only "as future conditions require and factual data justify", which plainly requires proof of conditions newly discovered or occurring after the original basin designation date. Because the commission previously considered plaintiff's evidence when it originally designated the basin, the plaintiff failed to establish any hydrological connection that could cause injury. Gallegos Family v. Colo. Groundwater, 2017 CO 73, 398 P.3d 599.