Colorado § 37-90-108 - Final permit - evidence of well construction and beneficial use - limitations - rules.

§ 37-90-108. Final permit - evidence of well construction and beneficial use - limitations - rules.

(1) (a) After having received a conditional permit to appropriate designated groundwater, a permit holder, within two years after the date of the issuance of the permit, shall construct the well or other works necessary to apply the water to a beneficial use.

(b) The permit holder, upon completion of the well, shall furnish information to the commission, in the form and within the time frame prescribed by the commission by rule, as to the depth of the well, the water-bearing formations intercepted by the well, and the maximum sustained pumping rate in gallons per minute.

(c) If the well described in the conditional permit is not constructed within two years after the date of the issuance of the conditional permit as provided in this subsection (1), the conditional permit expires and has no force or effect. If evidence that the well has been constructed within two years after the date that the permit was issued has not been furnished to the commission within the time frame prescribed by the commission by rule, the conditional permit expires. The commission shall notify the permit holder and, if applicable, the contractor listed on the permit application that the permit is expired.

(d) The commission may reinstate an expired conditional permit if the commission receives satisfactory evidence that the well was constructed within two years after the date that the conditional permit was issued, accompanied by a filing fee of thirty dollars. The commission shall consider records of the commission and evidence provided to the commission in determining whether the conditional permit should be reinstated.

(e) Subsection (1)(d) of this section does not apply to a permit that was formally expired through an order issued prior to September 1, 2025, or due to lack of evidence that water was placed to beneficial use.

(2) (a) If the well or wells described in a conditional permit have been constructed in compliance with subsection (1) of this section, the permit holder, within three years after the date of the issuance of the permit, shall furnish by sworn affidavit, in the form prescribed by the commission, evidence that water from the well or wells has been put to beneficial use; except that this subsection (2)(a) does not apply to a well described in a conditional permit to withdraw designated groundwater from a bedrock aquifer.

(b) The affidavit is prima facie evidence of the matters contained in the affidavit but is subject to objection by others, including ground water management districts, claiming to be injured thereby and to such verification and inquiry as the commission considers appropriate in each particular case.

(c) If the required affidavit is not furnished to the commission within the time and as provided in this subsection (2), the conditional permit expires and has no force or effect except as provided in subsection (4) of this section.

(d) If the well described in a conditional permit issued to withdraw designated groundwater from a bedrock aquifer has been constructed in compliance with subsection (1) of this section, the permit holder shall file a notice with the commission of commencement of beneficial use on a form prescribed by the commission within thirty-five days after the first beneficial use of any water withdrawn from the well.

(3) (a) (I) To the extent that the commission finds that water has been put to a beneficial use and that the other terms of the conditional permit have been complied with and after publication of the information required in the final permit, as provided in section 37-90-112, the commission shall order the state engineer to issue a final permit to use designated groundwater, containing the limitations and conditions the commission deems necessary to prevent waste and to protect the rights of other appropriators. In determining the extent of beneficial use for the purpose of issuing final permits, the commission may use the same criteria for determining the amount of water used on each acre that has been irrigated that is used in evaluating the amount of water available for appropriation under section 37-90-107. This subsection (3)(a)(I) does not apply to a well described in a conditional permit issued to withdraw designated groundwater from a bedrock aquifer.

(II) A final permit is not required to be issued for a well described in a conditional permit to withdraw designated groundwater from a bedrock aquifer. For such a well, a conditional permit, subject to the conditions of issuance of the permit, is considered a final determination of a well's water right if the well is in compliance with all other applicable requirements of this article 90.

(b) In determining the extent of beneficial use prior to the issuance of a final permit, the commission may either increase or decrease the quantity of water and the amount of irrigated acreage, if any, according to the evidence presented to the commission, but no increase shall be permitted which will increase the quantity of water beyond that authorized by the original decree, conditional permit, registration statement, or other well permit issued prior to basin designation or which otherwise will unreasonably affect the rights of other appropriators.

(c) Any owner of an existing valid conditional permit issued before July 1, 1978, may file with the commission an amended statement of beneficial use, in the form prescribed by the commission, on or before December 31, 1979, and not thereafter, if any such change occurred and was approved on or before August 5, 1977.

(4) The procedural requirement that a statement of beneficial use be filed applies to all permits wherein the water has been put to beneficial use since May 17, 1965. If evidence that water has been placed to beneficial use has not been received as of three years after the date of issuance of the conditional permit, the commission shall notify the permit holder by certified mail. In the notice, the commission shall give the permit holder the opportunity to submit proof that the water was put to beneficial use prior to three years after the date of issuance of the conditional permit. If information pertaining to completion of the well as required in subsection (1) of this section has not been received, the commission shall, in the notice, give the permit holder the opportunity to submit proof of well completion along with the statement of beneficial use. The proof must be received by the commission within twenty-one days after receipt of the notice by the permit holder, and, if the conditional permit was issued on or after July 14, 1975, the statement of beneficial use must be accompanied by a filing fee of thirty dollars. If the commission finds the proof to be satisfactory, the conditional permit remains in force and effect and may be reinstated pursuant to subsection (1)(d) of this section. If a response to the notice is not received or the proof is unsatisfactory, the conditional permit expires and cannot be reinstated. The commission shall consider any records of the commission and any evidence provided to the commission and all other matters set forth in this section in determining whether the conditional permit should remain in force and effect.

(5) (a) All final permits must set forth the following information as a minimum:

(I) The priority date;

(II) The name of the claimant;

(III) The quarter-quarter in which the well is located;

(IV) The maximum annual volume of the appropriation in acre-feet per year;

(V) The maximum pumping rate in gallons per minute; and

(VI) The maximum number of acres that have been irrigated, if used for irrigation.

(b) Notwithstanding any rule of law to the contrary other than a change of use case under section 37-90-111 (1)(g), once the state engineer issues a final permit for the withdrawal of designated groundwater pursuant to this section, a reduction in the amount of water used pursuant to the permit due to the conservation of water is not grounds to reduce:

(I) The maximum annual volume of the appropriation in acre-feet per year;

(II) The maximum pumping rate in gallons per minute; or

(III) The maximum number of acres that have been irrigated, if used for irrigation.

(6) The procedural requirement that the well completion information required by subsection (1)(b) of this section be furnished to the commission applies to all permits issued after May 17, 1965.

(7) Notwithstanding the amount specified for any fee in this section, the commission by rule or as otherwise provided by law may reduce the amount of one or more of the fees if necessary pursuant to section 24-75-402 (3), C.R.S., to reduce the uncommitted reserves of the fund to which all or any portion of one or more of the fees is credited. After the uncommitted reserves of the fund are sufficiently reduced, the commission by rule or as otherwise provided by law may increase the amount of one or more of the fees as provided in section 24-75-402 (4), C.R.S.

Source: L. 65: R&RE, p. 1251, § 1. C.R.S. 1963: § 148-18-7. L. 71: p. 1314, § 6. L. 75: (3) amended and (4) added, p. 1394, § 1, effective July 14. L. 79: (1) to (3) R&RE, p. 1371, § 2, effective June 7. L. 85: (1)(c), (3)(a), (3)(b), and (4) amended and (5) and (6) added, p. 1172, § 2, effective May 31. L. 86: (6) amended, p. 1221, § 34, effective May 30. L. 92: (4), (5)(c), and (6) amended, p. 2298, § 3, effective March 19. L. 94: (1)(c) and (2)(a) amended and (2)(d) added, p. 1746, § 1, effective July 1. L. 98: (7) added, p. 1344, § 72, effective June 1; (2)(a), (2)(d), (3)(a), (4), and (6) amended, p. 1218, § 7, effective August 5. L. 2013: (2)(a), (2)(d), and (3)(a) amended, (SB 13-072), ch. 30, p. 73, § 1, effective August 7; (5) amended, (SB 13-075), ch. 35, p. 101, § 1, effective August 7. L. 2025: (1), (2), (3)(a), (4), and (6) amended, (HB 25-1014), ch. 388, p. 2180, § 1, effective August 6.

Editor's note: (1) Section 2 of chapter 30, Session Laws of Colorado 2013, provides that the act amending subsections (2)(a), (2)(d), and (3)(a) applies to permits issued for designated groundwater from the Dawson, Denver, Arapahoe, or Laramie-Fox Hills aquifers before, on, or after August 7, 2013.

(2) Section 9(2) of chapter 388 (HB 25-1014), Session Laws of Colorado 2025, provides that the act changing this section applies to well permit applications that are pending before, on, or after August 6, 2025, and to valid well permits in existence before, on, or after August 6, 2025.

ANNOTATION

Law reviews. For article, "Oil Shale and Water Quality: The Colorado Prospectus Under Federal, State, and International Law", see 58 Den. L.J. 715 (1981).

Annotator's note. The following annotations include cases decided under former provision similar to this section.

The general assembly intended that the extent of beneficial use would limit the ground water appropriator by providing for the issuance of final permits based upon proof of beneficial use. Thompson v. Colo. Ground Water Comm'n, 194 Colo. 489, 575 P.2d 372 (1978).

Regardless of the quantity specified in a decree, the amount of water actually applied to beneficial use defines the full extent of the water right. Thompson v. Colo. Ground Water Comm'n, 194 Colo. 489, 575 P.2d 372 (1978).

The general assembly intended that the commission engage in a confirmatory investigation and that the issuance of final permits be a meaningful action. Thompson v. Colo. Ground Water Comm'n, 194 Colo. 489, 575 P.2d 372 (1978).

Where the commission fails to undertake an independent investigation to determine if the amount of water claimed is put to beneficial use prior to issuing a final permit, the commission procedure is not in compliance with statutory scheme. Thompson v. Colo. Ground Water Comm'n, 194 Colo. 489, 575 P.2d 372 (1978).

Commission must implement legislative scheme. The commission cannot rely upon conditional permits as though they are enforceable "existing claims" without implementing the legislative scheme which includes the issuance of final permits. Thompson v. Colo. Ground Water Comm'n, 194 Colo. 489, 575 P.2d 372 (1978).

The final permit is essential to the legislative scheme for the administration of ground water rights. Thompson v. Colo. Ground Water Comm'n, 194 Colo. 489, 575 P.2d 372 (1978).

Vested right in water not acquired after conditional permit expires. This article does not contemplate that appropriators may acquire a vested right in water put to beneficial use after their conditional permits have expired. Berens v. Ground Water Comm'n, 200 Colo. 170, 614 P.2d 352 (1980).

Conditional permits do not permit their holders to sleep on water rights and later expand their use to the full extent of their permits. Thompson v. Colo. Ground Water Comm'n, 194 Colo. 489, 575 P.2d 372 (1978); Peterson v. Ground Water Comm'n, 195 Colo. 508, 579 P.2d 629 (1978).

Conditional permit to last one year. Conditional permits expire and are of no effect one year after their issuance unless the statutory requirements necessary for the issuance of a final permit have been satisfied, or the commission has extended a conditional permit for a time certain for good cause shown, or the appropriator has submitted well completion data, but has failed to submit proof of beneficial use, where upon the appropriator is entitled to notice and 20 days to provide the missing information. Peterson v. Ground Water Comm'n, 195 Colo. 508, 579 P.2d 629 (1978).

Subsection (3) reflects a legislative determination that most designated ground water appropriations can be completed within one year, but also permits the commission to grant extensions upon good cause shown to avoid unjust results. Kuiper v. Warren, 195 Colo. 541, 580 P.2d 32 (1978).

Extension procedure and due diligence doctrine protect conditional ground water appropriators. The statutory extension procedure of this section and the doctrine of due diligence afford ground water appropriators, who are reasonably proceeding to complete appropriations under conditional rights, protection against loss of their rights. Kuiper v. Warren, 195 Colo. 541, 580 P.2d 32 (1978).

Beneficial uses. Land reclamation and dust control are proper beneficial uses for appropriations of tributary and nontributary water. State Dept. of Natural Res. v. Sw. Colo. Water Conservation Dist., 671 P.2d 1294 (Colo. 1983).

Intent to put water to beneficial use must not be speculative. Anti-speculative doctrine of Colo. River Water Conservation Dist. v. Vidler Tunnel Water Co., 197 Colo. 413, 594 P.2d 566 (1979), requiring more than mere future plans to beneficially use water, applies to appropriations of groundwater in designated ground water basins. Jaeger v. Colo. Ground Water Comm'n, 746 P.2d 515 (Colo. 1987).

When extent of beneficial use is fixed. Normally, the extent of beneficial use and the measure of the water right is fixed at the time a final decree is entered. Thompson v. Colo. Ground Water Comm'n, 194 Colo. 489, 575 P.2d 372 (1978).

The procedure set out in this section places the burden on the appropriator to prove that he has made a valid appropriation consistent with Colorado law. Thompson v. Colo. Ground Water Comm'n, 194 Colo. 489, 575 P.2d 372 (1978).

Applied in Danielson v. Kerbs AG., Inc., 646 P.2d 363 (Colo. 1982).