Colorado § 37-90-110 - Powers of the state engineer.

§ 37-90-110. Powers of the state engineer.

(1) In the administration and enforcement of this article and in the effectuation of the policy of this state to conserve its groundwater resources and for the protection of vested rights, the state engineer, either in the state engineer's own capacity or as the executive director of the commission, is empowered:

(a) To require all flowing wells to be equipped with valves so that the flow of water can be controlled;

(b) To require both flowing and nonflowing wells to be so constructed and maintained as to prevent the waste of groundwaters through leaky wells, casings, pipes, fittings, valves, or pumps, either above or below the land surface;

(c) To go upon all lands, both public and private, for the purpose of inspecting wells, pumps, casings, pipes, fittings, and measuring devices, including wells used or claimed to be used for domestic or stock purposes;

(d) To order the cessation of the use of a well pending the correction of any defect that the state engineer has ordered corrected;

(e) To commence actions to enjoin the illegal opening or excavation of wells or withdrawal or use of water therefrom and to appear and become a party to any action or proceeding pending in any court or administrative agency when it appears that the determination of such action or proceeding might result in depletion of the groundwater resources of the state contrary to the public policy expressed in this article or might injure vested rights of other appropriators;

(f) To take such action as may be required to enforce compliance with any regulation, control, or order promulgated pursuant to the provisions of this article;

(g) To issue to the owners or users of wells pumping designated groundwater in the state such orders as are necessary to implement the provisions of this section and section 37-90-111. In addition to any other method of giving notice, the mailing of the order in a certified letter to the well owner or operator, together with the posting of a written order, in plain sight, at the well head, shall be considered sufficient notice of the order of the state engineer, and, when so posted, the order shall be effective from the time of posting.

(h) To administer the movement of water involved in any commission-issued replacement plan or plan for augmentation involving designated groundwater. In such administration, the state engineer shall issue such orders as are necessary and appropriate.

(i) To order any person supplying energy used to pump designated groundwater to provide, at reasonable times, records of energy used to pump groundwater. The state engineer may exercise this authority only in connection with an alleged violation of this article. Suppliers of energy used to pump groundwater shall not be required to maintain records of energy used to pump groundwater more than five years after the year in which the energy is consumed. Suppliers of energy used to pump groundwater shall be held harmless from any and all civil or criminal liability with respect to the transfer of records pursuant to this section. Nothing contained in this paragraph (i) shall affect any reporting requirements of the public utilities commission pursuant to section 40-3-110, C.R.S. This paragraph (i) shall not apply to any person diverting by means of a well described in section 37-90-105 (1)(a).

Source: L. 65: R&RE, p. 1253, § 1. C.R.S. 1963: § 148-18-9. L. 71: p. 1318, § 17. L. 94: IP(1) and (1)(f) amended, p. 1747, § 2, effective July 1. L. 2004: IP(1) amended and (1)(g), (1)(h), and (1)(i) added, p. 1164, § 1, effective May 27.

Cross references: For general duties of the state engineer, see § 37-80-102.

ANNOTATION

Both the commission and state engineer have enforcement authority of the regulations established under the act and are the real and substantial parties in interest in an action to enjoin enforcement of water control measures, and consequently the suit is not against the state and therefore not barred by the federal constitution, and a decree could be entered in favor of or against the plaintiff without increasing or decreasing the decreed surface water rights or injuring the well owner's constitutional rights to appropriate water and apply it to a beneficial use; therefore, a decision for or against the plaintiff might indirectly affect the interests of all water users, but could not alter vested legal rights so as to raise the water users to the status of indispensable parties, and hence, the practical considerations and the absence of legal prejudice preclude a finding that all water users are indispensable parties. Jackson v. Colo., 294 F. Supp. 1065 (D. Colo. 1968).

The state engineer has the authority to impose a total volumetric limit on nontributary groundwater withdrawals. Parker Water & Sanitation Dist. v. Rein, 2024 CO 71M, 559 P.3d 217.