Colorado § 37-90-137 - Permits to construct wells outside designated basins - fees - permit no groundwater right - evidence - time limitation - well permits - rules - definitions.

§ 37-90-137. Permits to construct wells outside designated basins - fees - permit no groundwater right - evidence - time limitation - well permits - rules - definitions.

(1) (a) On and after May 17, 1965, a new well shall not be constructed outside the boundaries of a designated groundwater basin, and the supply of water from existing wells outside the boundaries of a designated groundwater basin shall not be increased or extended unless the user makes an application in writing to the state engineer for a permit to construct a well, in a form prescribed by the state engineer.

(b) The applicant shall specify in the application described in subsection (1)(a) of this section:

(I) The particular aquifer from which the water is to be diverted;

(II) The proposed beneficial use for the water;

(III) The location of the proposed well;

(IV) The name of the owner of the land on which the proposed well will be located;

(V) The average annual amount of water applied for in acre-feet per year;

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

(VII) If the proposed use is agricultural irrigation, a description of the land to be irrigated, the name of the owner of the land, and any other reasonable information that the state engineer designates on the form prescribed.

(c) Notwithstanding any provision of this subsection (1) to the contrary, the requirements of this subsection (1) do not apply to wells constructed pursuant to an operations permit issued by the energy and carbon management commission pursuant to section 37-90.5-106 (1)(b).

(2) (a) (I) Repealed.

(II) Effective July 1, 2006, upon receipt of an application for a replacement well or a new, increased, or additional supply of groundwater from an area outside the boundaries of a designated groundwater basin, accompanied by a filing fee of one hundred dollars, the state engineer shall make a determination as to whether or not the exercise of the requested permit will materially injure the vested water rights or prior geothermal operations of others.

(b) (I) The state engineer shall issue a permit to construct a well only if:

(A) The state engineer finds, as substantiated by hydrological and geological facts, that there is unappropriated water available for withdrawal by the proposed well and that the vested water rights or prior geothermal operations of others will not be materially injured; and

(B) Except as specified in subsection (2)(b)(II) of this section, the location of the proposed well will be more than six hundred feet from an existing well completed in the same aquifer and more than one-fourth of a mile from a prior geothermal operation utilizing water from the same aquifer.

(II) If the state engineer, after a hearing, finds that circumstances in a particular instance so warrant, or if a court decree is entered for the proposed well location after notice has been given in accordance with subsection (2)(b)(II)(B) of this section, the state engineer may issue a permit without regard to the limitation specified in subsection (2)(b)(I)(B) of this section; except that a hearing is not required and the state engineer may issue a well permit without regard to the limitation specified in subsection (2)(b)(I)(B) of this section:

(A) If the state engineer notifies the owners of all wells within six hundred feet of the proposed well by certified mail and receives no response within the time set forth in the notice, and if the proposed well is located within one-fourth of a mile of a prior geothermal operation, and the state engineer notifies the prior geothermal operation's designated individuals and the energy and carbon management commission by electronic mail and receives no response within the time set forth in the notice;

(B) If the proposed well is part of a water court proceeding adjudicating the water right for the well, or if the proposed well is part of an adjudication of a plan for augmentation or change of water right and if evidence is provided to the water court that the applicant has given notice of the water court application, at least fourteen days before making the application, by registered or certified mail, return receipt requested, to the owners of record of all wells within six hundred feet of the proposed well and to all designated individuals of prior geothermal operations within one-fourth of a mile of the proposed well;

(C) If the proposed well will serve an individual residential site and the proposed pumping rate will not exceed fifteen gallons per minute; except that, if there is an oil and gas well within six hundred feet of the surface location of the proposed well, the state engineer shall notify the owner of such well by certified mail of the proposed well and may issue the well permit subject to the limitations specified in sub-subparagraph (A) of subparagraph (I) of this paragraph (b);

(D) If the proposed well is an oil and gas well and the only wells within six hundred feet of the surface location of the proposed well are oil and gas wells; or

(E) If the proposed well is an oil and gas well, there is an existing production water well that is not an oil and gas well within six hundred feet of the surface location of the proposed oil and gas well, the state engineer has provided written notice of the application by certified mail to the owners of such wells that are not oil and gas wells within thirty-five days after receipt of a complete application for the proposed well, and the state engineer has given those to whom notice was provided thirty-five days after the date of mailing of such notice to file comments on the proposed well's application.

(c) The permit shall set forth the conditions for drilling, casing, and equipping wells and other diversion facilities as are reasonably necessary to prevent waste, pollution, or material injury to existing rights or prior geothermal operations.

(d) (I) The state engineer shall endorse upon the application the date of its receipt, file and preserve such application, and make a record of such receipt and the issuance of the permit in his office so indexed as to be useful in determining the extent of the uses made from various groundwater sources.

(II) The state engineer shall act upon an application filed under this section within forty-five days after its receipt.

(e) As used in this subsection (2), unless the context otherwise requires:

(I) "Material injury to a prior geothermal operation" has the meaning set forth in section 37-90.5-106 (1)(c).

(II) "Prior geothermal operation" has the meaning set forth in section 37-90.5-103 (14.5).

(3) (a) (I) A permit to construct a well outside the boundaries of a designated groundwater basin issued on or after April 21, 1967, expires two years after issuance unless the well is constructed before the expiration of the permit.

(II) If the requirements of section 37-92-301 are met, the expiration of any permit pursuant to this paragraph (a) associated with a conditional groundwater right shall not be the sole basis to determine the existence of reasonable diligence toward completion of such conditional water right.

(III) The state engineer may require the metering or other reasonable measurement of withdrawals of groundwater pursuant to permits and the reasonable recording and disclosure of such measured withdrawals.

(b) Any permit to construct a well issued by the state engineer prior to April 21, 1967, shall expire on July 1, 1973, unless the applicant furnishes to the state engineer, prior to July 1, 1973, evidence that the water from such well has been put to beneficial use prior to that date. The state engineer shall give notice by certified or registered mail to all persons to whom such permits were issued at the address shown on the state engineer's records, setting forth the provisions of this subsection (3). Such notices shall be mailed not later than December 31, 1971.

(c) 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 state engineer within the time frame prescribed by rules adopted pursuant to section 37-91-104, the well permit expires. The state engineer shall notify the permit holder and, if applicable, the contractor listed on the permit application that the well permit is expired.

(d) In the case of federally authorized water projects wherein well permits are required by this section and have been secured, the expiration dates of the projects may be extended for additional periods, not to exceed one year per extension, based upon a finding of good cause by the state engineer following a review of any such project at least annually by the state engineer. The state engineer may extend the expiration of a permit if the person to whom the permit was issued, on forms as may be prescribed by the state engineer, furnishes to the state engineer a showing of good cause as to why the well has not been constructed and an estimate of time necessary to complete construction.

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

(f) Subsection (3)(e) of this section does not apply to a well permit that formally expired through an order issued prior to September 1, 2025.

(4) (a) In the issuance of a permit to construct a well outside a designated groundwater basin and not meeting the exemptions set forth in section 37-92-602 to withdraw nontributary groundwater or any groundwater in the Dawson, Denver, Arapahoe, and Laramie-Fox Hills aquifers, the provisions of subsections (1) and (2) of this section shall apply.

(b) (I) Permits issued pursuant to this subsection (4) shall allow withdrawals on the basis of an aquifer life of one hundred years.

(II) Subject to the provisions of subsections (1) and (2) of this section, the amount of such groundwater available for withdrawal shall be that quantity of water, exclusive of artificial recharge, underlying the land owned by the applicant or underlying land owned by another:

(A) Who has consented in writing to the applicant's withdrawal; or

(B) Whose consent exists by virtue of a lawful municipal ordinance or a quasi-municipal district resolution in effect prior to January 1, 1985, and which consent was the subject of a water court application for determination of nontributary groundwater rights filed by the affected municipality or quasi-municipal district prior to January 1, 1985; or

(C) Who shall be deemed to have consented to the withdrawal of groundwater pursuant to the provisions of subsection (8) of this section.

(b.5) (I) An applicant claiming to own the overlying land or to have the consent of the owner of the overlying land as contemplated in sub-subparagraph (A) of subparagraph (II) of paragraph (b) of this subsection (4) shall furnish to the state engineer, in addition to evidence of such consent, evidence that the applicant has given notice of the application by registered or certified mail, return receipt requested, no less than ten days prior to the making of the application, to every record owner of the overlying land and to every person who has a lien or mortgage upon, or deed of trust to, the overlying land recorded in the county in which the overlying land is located.

(II) For purposes of this paragraph (b.5), "person" means any individual, partnership, association, or corporation authorized to do business in the state of Colorado, or any political subdivision or public agency thereof, or any agency of the United States.

(III) The provisions of subparagraph (I) of this paragraph (b.5) do not apply to applicants whose right to withdraw the groundwater has been determined by a valid decree nor to political subdivisions of the state of Colorado, special districts, municipalities, or quasi-municipal districts that have obtained consent to withdraw the groundwater by deed, assignment, or other written evidence of consent where, at the time of application, the overlying land is within the water service area of such entity.

(c) Material injury to vested nontributary groundwater rights shall not be deemed to result from the reduction of either hydrostatic pressure or water level in the aquifer.

(d) The annual amount of withdrawal allowed in any well permits issued under this subsection (4) shall be the same as the amount determined by court decree, if any, and may, if so provided by any such decree, provide for the subsequent adjustment of such amount to conform to the actual aquifer characteristics encountered upon drilling of the well or test holes.

(5) Any right to the use of groundwater entitling its owner or user to construct a well, which right was initiated prior to July 6, 1973, as evidenced by an unexpired well permit issued prior to July 6, 1973, or a current decree, shall not be subject to the provisions of subsection (4) of this section.

(6) Rights to nontributary groundwater outside of designated groundwater basins may be determined in accordance with the procedures of sections 37-92-302 to 37-92-305. Such proceedings may be commenced at any time and may include a determination of the right to such water for existing and future uses. Such determination shall be in accordance with subsections (4) and (5) of this section. Claims pending as of October 11, 1983, which have been published pursuant to section 37-92-302 in the resume need not be republished.

(7) In the case of dewatering of geologic formations by withdrawing nontributary groundwater to facilitate or permit mining of minerals:

(a) (I) Except for coal bed methane wells, a well permit is not required unless the nontributary groundwater being removed will be beneficially used.

(II) Except for coal bed methane wells, a well permit is not required if the nontributary groundwater being removed to facilitate or permit the mining of minerals will be used only by operators within the geologic basin where the groundwater is removed to facilitate or permit the mining of minerals, including:

(A) Injection into a properly permitted disposal well;

(B) Evaporation or percolation in a properly permitted pit;

(C) Disposal at a properly permitted commercial facility;

(D) Roadspreading or reuse for enhanced recovery, drilling, well stimulation, well maintenance, pressure control, pump operations, dust control on-site or off-site, pipeline and equipment testing, equipment washing, or fire suppression;

(E) Discharge into state waters in accordance with the "Colorado Water Quality Control Act", article 8 of title 25, and the rules promulgated under that act;

(F) Evaporation at a properly permitted centralized exploration and production waste management facility; or

(G) Generating energy or otherwise using heat from groundwater for the mining of minerals.

(b) In the issuance of any well permit pursuant to this subsection (7), subsection (4) of this section does not apply and subsections (1), (2), and (3) of this section apply; except that, in considering whether the permit shall issue, the requirement that the state engineer find that there is unappropriated water available for withdrawal and the six-hundred-foot spacing requirement in subsection (2) of this section do not apply. The state engineer shall allow the rate of withdrawal stated by the applicant to be necessary to dewater the mine; except that, if the state engineer finds that the proposed dewatering will cause material injury to the vested water rights of others, the applicant may propose, and the permit shall contain, terms and conditions that will prevent such injury. The reduction of hydrostatic pressure level or water level alone does not constitute material injury. Permitting determinations pursuant to this subsection (7) neither confer a water right nor preclude determination of a water right by the water court.

(c) The state engineer may, pursuant to the "State Administrative Procedure Act", article 4 of title 24, C.R.S., adopt rules to assist with the administration of this subsection (7). The rule-making authority includes the promulgation of rules pursuant to which groundwater within formations and basins, in whole or part, is determined to be nontributary for the purposes of this subsection (7). The rules may also provide rule-making and adjudicatory procedures for nontributary determinations to be made after the initial rule-making pursuant to this subsection (7). In all rule-making proceedings authorized by this subsection (7), the state engineer shall afford interested persons the right of cross-examination. Judicial review of all rules promulgated pursuant to this subsection (7), including all nontributary determinations made pursuant to this subsection (7), is in accordance with the "State Administrative Procedure Act"; except that venue for such review lies exclusively with the water judge or judges for the water division or divisions within which the groundwater that is the subject of such rules or determinations is located. In any judicial action seeking to curtail the withdrawal, use, or disposal of groundwater pursuant to this subsection (7) or to otherwise declare such activities unlawful, the court shall presume, subject to rebuttal, that any applicable nontributary determination made by the state engineer is valid. Any rules promulgated pursuant to this subsection (7) must not conflict with existing laws and do not affect the validity of groundwater well permits existing prior to the adoption of such rules.

(7.5) (a) Except as required by subsection (7.5)(b) of this section, a permit from the state engineer is not required in the case of withdrawing nontributary groundwater from a geologic formation if the withdrawal is permitted as a deep geothermal operation, as defined in section 37-90.5-103 (3), and the withdrawn nontributary groundwater will be used only for operations to extract or utilize heat, including:

(I) Generating electricity;

(II) Heating and cooling buildings;

(III) Heating swimming pools, public bathhouses, or developed hot springs facilities;

(IV) Heating aquaculture;

(V) Melting snow or ice;

(VI) Heating to facilitate carbon dioxide capture or hydrogen production;

(VII) Deep geothermal exploration, resource confirmation, or reservoir enhancement; and

(VIII) Heating and drying for other industrial processes.

(b) A well permit is required if the operator will use the nontributary groundwater for additional beneficial uses unrelated to the extraction or utilization of heat.

(8) It is recognized that economic considerations generally make it impractical for individual landowners to drill wells into the aquifers named in this subsection (8) for individual water supplies where municipal or quasi-municipal water service is available and that the public interest justifies the use of such groundwater by municipal or quasi-municipal water suppliers under certain conditions. Therefore, wherever any existing municipal or quasi-municipal water supplier is obligated either by law or by contract in effect prior to January 1, 1985, to be the principal provider of public water service to landowners within a certain municipal or quasi-municipal boundary in existence on January 1, 1985, said water supplier may adopt an ordinance or resolution, after ten days' notice pursuant to the provisions of part 1 of article 70 of title 24, C.R.S., which incorporates groundwater from the Dawson, Denver, Arapahoe, or Laramie-Fox Hills aquifers underlying all or any specified portion of such municipality's or quasi-municipality's boundary into its actual municipal service plan. Upon adoption of such ordinance or resolution, a detailed map of the land area as to which consent is deemed to have been given shall be filed with the state engineer. Upon the effective date of such ordinance or resolution, the owners of land which overlies such groundwater shall be deemed to have consented to the withdrawal by that water supplier of all such groundwater; except that no such consent shall be deemed to be given with respect to any portion of the land if:

(a) Water service to such portion of the land is not reasonably available from said water supplier and no plan has been established by that supplier allowing the landowner to obtain an alternative water supply;

(b) Such ordinance or resolution is adopted prior to September 1, 1985, and, prior to January 1, 1985, such groundwater was conveyed or reserved or consent to use such groundwater was given or reserved in writing to anyone other than such water supplier and such conveyance, reservation, or consent has been properly recorded prior to August 31, 1985;

(c) Such ordinance or resolution is adopted on or after September 1, 1985, and said groundwater has been conveyed or reserved or consent to use such groundwater has been given or reserved in writing to anyone other than such water supplier and such conveyance, reservation, or consent is properly recorded before the effective date of that ordinance or resolution;

(d) Consent to use such groundwater has been given to anyone other than such water supplier by the lawful effect of an ordinance or resolution adopted prior to January 1, 1985;

(e) Such groundwater has been decreed or permitted to anyone other than such water supplier prior to the effective date of such ordinance or resolution; or

(f) Such portion of the land is not being served by said water supplier as of the effective date of such ordinance or resolution and such groundwater is the subject of an application for determination of a right to use groundwater filed in the water court prior to July 1, 1985.

(9) (a) For the purpose of making the state engineer's consideration of well permit applications for the withdrawal of groundwater from wells described in subsection (4) of this section more certain and expeditious, the state engineer may, to the extent provided in this subsection (9) and pursuant to the "State Administrative Procedure Act", adopt rules and regulations to prescribe reasonable criteria and procedures for the application for, and the evaluation, issuance, extension, and administration of, such well permits. Such rules and regulations shall only be promulgated after the state engineer has conducted a hydrogeologic analysis, the results of which factually support the promulgation and the content of such rules and regulations for any particular aquifer or portion thereof. All such rules and regulations shall allow the withdrawal pursuant to such permits of the full amount of groundwater determined under subsection (4) of this section and shall afford the applicant the opportunity to rebut any presumptive aquifer characteristics. Presumptive aquifer characteristics established by those rules and regulations shall also apply to the determination of rights to groundwater from wells described in subsection (4) of this section by the water judges, subject to rebuttal by any party. In all rule-making proceedings authorized by this subsection (9), the state engineer shall afford interested persons the right of cross-examination. Judicial review of all rules and regulations promulgated pursuant to this subsection (9) shall be in accordance with the "State Administrative Procedure Act"; except that venue for such review shall lie exclusively with the water judge or judges for the water division or divisions within which the subject groundwater is located.

(b) On or before December 31, 1985, the state engineer shall promulgate reasonable rules and regulations applying exclusively to the Dawson, Denver, Arapahoe, and Laramie-Fox Hills aquifers to the extent necessary to assure that the withdrawal of groundwater from wells described in subsection (4) of this section will not materially affect vested water rights to the flow of any natural stream. In no event shall the rules and regulations promulgated under this paragraph (b) require that persons who withdraw nontributary groundwater, as defined in section 37-90-103 (10.5), relinquish the right to consume, by means of original use, reuse, and successive use, more than two percent of the amount of such groundwater which is withdrawn without regard to dominion or control of the groundwater so relinquished, nor shall they require that judicial approval of plans for augmentation providing for such relinquishment be obtained.

(c) Repealed.

(c.5) (I) (A) As to wells that will be completed in the Dawson, Denver, Arapahoe, and Laramie-Fox Hills aquifers and will withdraw groundwater that is not nontributary groundwater, judicial approval of plans for augmentation is required prior to the use of the groundwater.

(B) As to such wells completed in the Dawson aquifer, decrees approving plans for augmentation must provide for the replacement of actual out-of-priority depletions to the stream caused by withdrawals from the wells and must meet all other statutory criteria for the plans.

(C) As to such wells completed in the Denver, Arapahoe, or Laramie-Fox Hills aquifers more than one mile from any point of contact between any natural stream including its alluvium on which water rights would be injuriously affected by any stream depletion, and any such aquifer, the decrees must provide for the replacement to the affected stream system or systems of a total amount of water equal to four percent of the amount of water withdrawn on an annual basis. As to such wells completed in such aquifers at points closer than one mile to any such contact, the amount of the replacement is determined using the assumption that the hydrostatic pressure level in each such aquifer has been lowered at least to the top of that aquifer throughout that aquifer. The decrees may also require the continuation of replacement after withdrawal ceases if necessary to compensate for injurious stream depletions caused by prior withdrawals from the wells and must meet all other statutory criteria for such plans.

(II) (Deleted by amendment, L. 2015.)

(d) On or before July 1, 1995, the state engineer shall promulgate reasonable rules that apply to the permitting and use of water artificially recharged into the Dawson, Denver, Arapahoe, and Laramie-Fox Hills aquifers. On or before July 1, 2018, the state engineer shall promulgate rules that apply to the permitting and use of water artificially recharged into a nontributary groundwater aquifer. The rules promulgated pursuant to this subsection (9)(d) must effectuate the maximum utilization of aquifers through the conjunctive use of surface and groundwater resources.

(10) Owners of such permits issued pursuant to subsection (4) of this section shall be entitled to the issuance of permits for additional wells to be constructed on the land referred to in subsection (4) of this section. The standards of subsection (4) of this section shall be applied as if the applications for those additional well permits were filed on the same dates that the original applications were filed.

(11) (a) (I) A person shall not, in connection with the extraction of sand and gravel by open mining as defined in section 34-32.5-103 (15), expose groundwater to the atmosphere unless the person has obtained a well permit from the state engineer pursuant to this section. The state engineer shall issue a well permit upon approval by the water court of a plan for augmentation or upon approval by the state engineer of a plan of substitute supply; except that no increased replacement of water shall be required by the water court or the state engineer whenever the operator or owner of land being mined has, prior to January 15, 1989, entered into and continually thereafter complied with a written agreement with a water conservancy district or water users' association to replace or augment the depletions in connection with or resulting from open mining of sand and gravel. The well permit and plan of substitute supply may authorize uses of water incidental to open mining for sand and gravel, including processing and washing mined materials; dust suppression; mined land reclamation including temporary irrigation for revegetation; liner or slurry wall construction; production of concrete and other aggregate-based construction materials; dewatering; and mitigation of impacts from mining and dewatering.

(II) Any person who extracted sand and gravel by open mining and exposed groundwater to the atmosphere after December 31, 1980, shall apply for a well permit pursuant to this section and, if applicable, shall apply for approval of a plan for augmentation or a plan of substitute supply prior to July 15, 1990.

(b) If any groundwater was exposed to the atmosphere in connection with the extraction of sand and gravel by open mining as defined in section 34-32-103 (9), C.R.S., prior to January 1, 1981, no such well permit, plan for augmentation, or plan of substitute supply shall be required to replace depletions from evaporation; except that the burden of proving that such groundwater was exposed prior to January 1, 1981, shall be upon the party claiming the benefit of this exception. Notwithstanding the provisions of this paragraph (b), judgments and decrees entered prior to July 1, 1989, approving plans for augmentation, which plans include the replacement of depletions from such evaporation, shall be given full effect and shall be enforced according to their terms.

(c) Any person who has reactivated or reactivates open mining operations which exposed groundwater to the atmosphere but which ceased activity prior to January 1, 1981, shall obtain a well permit and shall apply for approval of a plan for augmentation or a plan of substitute supply pursuant to paragraph (a) of this subsection (11).

(d) No person who obtains or operates a plan for augmentation or plan of substitute supply prior to July 1, 1989, shall be required to make replacement for the depletions from evaporation exempted in this subsection (11) or otherwise replace water for increased calls which may result therefrom.

(e) In addition to the well permit filing fee required by subsection (2) of this section, the state engineer shall collect the following fees for exposing groundwater to the atmosphere for the extraction of sand and gravel by open mining:

(I) For persons who exposed groundwater to the atmosphere on or after January 1, 1981, but prior to July 15, 1989, one thousand five hundred ninety-three dollars; except that, if such plan is filed prior to July 15, 1990, as required by subparagraph (II) of paragraph (a) of this subsection (11), the filing fee shall be seventy dollars if such plan includes ten acres or less of exposed groundwater surface area or three hundred fifty dollars if such plan includes more than ten acres of exposed groundwater surface area;

(II) For persons who expose groundwater to the atmosphere on or after July 15, 1989, one thousand five hundred ninety-three dollars regardless of the number of acres exposed. In the case of new mining operations, such fee shall cover two years of operation of the plan.

(III) For persons who reactivated or who reactivate mining operations that ceased activity prior to January 1, 1981, and enlarge the surface area of any gravel pit lake beyond the area it covered before the cessation of activity, one thousand five hundred ninety-three dollars;

(IV) For persons who request renewal of an approved substitute water supply plan prior to the expiration date of the plan, two hundred fifty-seven dollars regardless of the number of acres exposed;

(V) For persons whose approved substitute water supply plan has expired and who submit a subsequent plan, one thousand five hundred ninety-three dollars regardless of the number of acres exposed. An approved plan shall be considered expired if the applicant has not applied for renewal before the expiration date of the plan. The state engineer shall notify the applicant in writing if the plan is considered expired.

(VI) For persons whose proposed substitute water supply plan was disapproved and who submit a subsequent plan, one thousand five hundred ninety-three dollars regardless of the number of acres exposed. The state engineer shall notify the applicant in writing of disapproval of a plan.

(f) Excluding the well permit filing fee required by subsection (2) of this section, the state treasurer shall credit all fees collected with an application for approval of a plan for augmentation or a plan of substitute supply to the water resources cash fund created in section 37-80-111.7 (1).

(g) A person who has obtained a reclamation permit pursuant to section 34-32-112, C.R.S., shall be allowed to apply for a single well permit and to submit a single plan for augmentation or a single plan of substitute supply for the entire acreage covered by the reclamation plan without regard to the number of gravel pit lakes placed within such acreage.

(12) (a) In considering any well permit application in water division 3 that involves a new withdrawal of groundwater that will affect the rate or direction of movement of water in the confined aquifer, the state engineer shall recognize that unappropriated water is not made available and injury is not prevented as a result of the reduction of water consumption by nonirrigated native vegetation.

(b) (I) Repealed.

(II) Subparagraph (I) of this paragraph (b) was repealed, effective July 1, 2004; except that nothing in this subsection (12) shall affect the validity of the rules adopted by the state engineer for groundwater withdrawals in water division 3, or affect the applicability of such rules to well permits that have been or will be issued, and judicial decrees that have been or will be entered, for the withdrawal of groundwater in water division 3.

(13) 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.

(14) The state engineer may issue permits for augmentation wells only in accordance with plans for augmentation approved by the water judge for water division 1 and substitute water supply plans approved pursuant to section 37-92-308 that include such wells.

(15) A person withdrawing water from a well pursuant to subsection (1) or (4) of this section may use graywater through the use of a graywater treatment works, as those terms are defined in section 25-8-103 (8.3) and (8.4), C.R.S., in compliance with the requirements of section 25-8-205 (1)(g), C.R.S. Any limitations on use set forth in the well permit, and the provisions of any decreed plan for augmentation, apply to the use of graywater.

Source: L. 65: R&RE, p. 1265, § 1. C.R.S. 1963: § 148-18-36. L. 67: p. 277, § 10. L. 71: pp. 1317, 1324, 1325, §§ 16, 3, 5. L. 73: p. 1520, § 1. L. 77: (3)(c) and (3)(d) added, p. 1700, § 1, effective July 1. L. 79: (3)(a) amended, p. 1377, § 1, effective May 18. L. 83: (5) added, p. 1418, § 1, effective May 23; (6) added, p. 2080, § 2, effective October 11. L. 85: (1), (3)(a), and (4) amended and (7) to (10) added, p. 1161, § 3, effective July 1; (8) amended, p. 1372, § 55, effective July 1. L. 87: (2) and (3)(a) amended, p. 1302, § 6, effective July 2. L. 89: (11) added, p. 1422, § 2, effective July 15. L. 92: (2) and (3)(c) amended, p. 2299, § 5, effective March 19; (4) amended, p. 2310, § 1, effective March 20. L. 93: (4)(b.5) amended, p. 85, § 1, effective March 30; (11)(e) and (11)(f) amended, p. 1833, § 3, effective June 6. L. 94: (9)(d) added, p. 617, § 1, effective April 13; (3)(a)(I) amended, p. 1208, § 1, effective May 19. L. 95: (2) amended, p. 139, § 2, effective April 7. L. 96: (2)(b)(I), (2)(b)(II), (4)(a), and IP(8) amended, pp. 327, 325, §§ 4, 1, effective April 16; (9)(c) amended and (9)(c.5) added, p. 1361, § 2, effective June 1. L. 98: (12) added, p. 853, § 2, effective May 26; (9)(c)(II) and (9)(c.5)(II) amended, p. 1072, § 1, effective June 1; (13) added, p. 1344, § 74, effective June 1. L. 99: (9)(c)(II) and (9)(c.5)(II) amended, p. 670, § 1, effective May 18. L. 2001: (12)(b) amended, p. 158, § 2, effective March 28; (9)(c)(II) and (9)(c.5)(II) amended, p. 727, § 2, effective July 1. L. 2003: (2)(a) and (3)(a)(I)(A) amended and (3)(a)(I)(A.3) and (3)(a)(I)(A.5) added, p. 46, § 6, effective (see editor's note); (14) added, p. 1454, § 4, effective April 30; (9)(c), (9)(c.5), and (12)(b) amended, pp. 1595, 1596, §§ 1, 3, effective May 2; (2)(a)(I)(A) and (2)(a)(II) amended, p. 1684, § 17, effective May 14. L. 2004: (3)(a) R&RE and (3)(c) amended, pp. 1128, 1129, §§ 1, 2, effective May 27. L. 2006: (11)(e) amended, p. 1271, § 2, effective July 1. L. 2009: (2)(b) and IP(7) amended and (7)(c) added, (HB 09-1303), ch. 390, pp. 2108, 2109, §§ 2, 3, effective June 2. L. 2010: IP(7), (7)(a), and (7)(b) amended, (SB 10-165), ch. 31, p. 112, § 1, effective March 22. L. 2011: IP(7) and (7)(c) amended, (HB 11-1286), ch. 135, p. 473, § 1, effective May 4. L. 2012: (9)(c)(II) and (9)(c.5)(II) amended, (SB 12-008), ch. 7, p. 21, § 1, effective March 8; (2)(b)(II)(B), (2)(b)(II)(E), and (3)(c) amended, (SB 12-175), ch. 208, p. 884, § 156, effective July 1; (11)(f) amended, (SB 12-009), ch. 197, p. 791, § 4, effective July 1. L. 2013: (15) added, (HB 13-1044), ch. 228, p. 1090, § 8, effective May 15. L. 2015: (9)(c) repealed and (9)(c.5) amended, (SB 15-010), ch. 5, p. 11, § 1, effective March 13. L. 2017: (9)(d) amended, (HB 17-1076), ch. 89, p. 272, § 1, effective August 9. L. 2018: (11)(a)(I) amended, (SB 18-041), ch. 9, p. 157, § 2, effective August 8. L. 2023: (1) and (7)(a) amended, (SB 23-285), ch. 235, p. 1232, § 4, effective July 1. L. 2025: (2)(a)(II), (2)(b)(I), IP(2)(b)(II), (2)(b)(II)(A), (2)(b)(II)(B), and (2)(c) amended and (2)(e) and (7.5) added, (HB 25-1165), ch. 257, p. 1302, § 10, effective August 6; (3)(a)(I), (3)(c), and (3)(d) amended and (3)(e) and (3)(f) added, (HB 25-1014), ch. 388, p. 2183, § 2, effective August 6.

Editor's note: (1) Section 10 of chapter 7, Session Laws of Colorado 2003, provides for an effective date of March 1, 2003; however, the Governor did not sign the act until March 5, 2003.

(2) Subsection (12)(b)(II) provided for the repeal of subsection (12)(b)(I), effective July 1, 2004. (See L. 2003, p. 1596.)

(3) Subsection (2)(a)(I)(B) provided for the repeal of subsection (2)(a)(I), effective July 1, 2006. (See L. 2003, p. 46.)

(4) Section 2 of chapter 135, Session Laws of Colorado 2011, provides that the act amending the introductory portion to subsection (7) and subsection (7)(c) applies to nontributary determinations made and rules promulgated before, on, or after May 4, 2011.

(5) 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.

Cross references: (1) For the "State Administrative Procedure Act", see article 4 of title 24; for the definition of designated groundwater, see § 37-90-103 (6); for small capacity wells, see § 37-90-105; for definitions of underground water, see §§ 37-90-103 (19) and 37-92-103 (11); for exemptions from and presumptions formed in the application of article 92 of this title 37, see § 37-92-602.

(2) For the legislative declaration contained in the 2003 act amending subsections (2)(a) and (3)(a)(I)(A) and enacting subsections (3)(a)(I)(A.3) and (3)(a)(I)(A.5), see section 1 of chapter 7, Session Laws of Colorado 2003. For the legislative declaration in the 2013 act adding subsection (15), see section 1 of chapter 228, Session Laws of Colorado 2013. For the legislative declaration in HB 25-1165, see section 1 of chapter 257, Session Laws of Colorado 2025.

ANNOTATION

Law reviews. For comment on Hall v. Kuiper, see 51 Den. L.J. 127 (1974). For article, "Oil Shale and Water Quality: The Colorado Prospectus Under Federal, State, and International Law", see 58 Den. L.J. 715 (1981). For article, "The Effect of Water Law on the Development of Oil Shale", see 58 Den. L.J. 751 (1981). For article, "Recent Developments in Colorado Groundwater Law", see 58 Den. L.J. 801 (1981). For article, "Ground Water Mining Law and Policy", see 53 U. Colo. L. Rev. 505 (1982). For note, "Reinterpreting the Physical Act Requirements for Conditional Water Rights", see 53 U. Colo. L. Rev. 765 (1982). For article, "Water Rights — How to Avoid Getting in Over Your Head", see 11 Colo. Law. 2143 (1982). For article, "Nontributary Groundwater: The Continuing Saga", see 13 Colo. Law. 68 (1984). For article, "Water for Mining and Milling Operations — Part I", see 13 Colo. Law. 240 (1984). For article, "Principles and Law of Colorado's Nontributary Ground Water", see 62 Den. U. L. Rev. 809 (1985). For article, "The Continuing Groundwater Saga — Part I: Senate Bill 5", see 15 Colo. Law. 422 (1986). For article, "The Continuing Groundwater Saga — Part II: The Denver Basin Rules", see 15 Colo. Law. 667 (1986). For article, "The Continuing Groundwater Saga — Part III: The Statewide Nontributary Groundwater Rules", see 15 Colo. Law. 813 (1986). For article, "The Physical Solution in Western Water Law", see 57 U. Colo. L. Rev. 445 (1986). For article, "When Worlds Collide — The Gravel Pit Evaporation Conflict", see 18 Colo. Law. 237 (1989). For article, "A Guide to Colorado Sand and Gravel Permitting", 49 Colo. Law. 26 (May 2020).

Inherent in the state engineer's authority to issue a well permit is the authority to revoke or modify the permit when the evidence shows that doing so is required by law. The state engineer therefore has jurisdiction to resolve a petition to revoke a groundwater permit notwithstanding the fact that the issue is a water matter under § 37-92-203 because this section specifically delegates the issuance of groundwater permits to the state engineer's jurisdiction. The state engineer must follow the procedures established in § 24-4-104 of the State Administrative Procedure Act because the statutes specific to the state engineer are silent with regard to the procedures applicable to such a petition. V Bar Ranch LLC v. Cotten, 233 P.3d 1200 (Colo. 2010).

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

Nontributary ground water rights. The modified doctrine of prior appropriation provided for in the Colorado ground water management act applies to nontributary ground water, and rights to such water in designated ground water basins must be obtained through the procedures established in that act. Rights to nontributary ground water not located in a designated basin may be obtained only through application for a well permit from the state engineer under this section. Review of the state engineer's action on well permit applications may be obtained under § 24-4-106, as prescribed by § 37-90-115, for appeals taken before the 1983 revision of § 37-90-115 became applicable. State Dept. of Nat. Res. v. Sw. Colo. Water Conservation Dist., 671 P.2d 1294 (Colo. 1983).

Filing of applications in water court. In securing a determination of water rights in tributary ground water, although § 37-92-302(2) provides that the water court shall not enter a decision on an application for determination of a water right requiring the construction of a well until the claimant supplements the application with a permit to construct a well, issued by the state engineer under this section, or evidence of its denial or of failure of the state engineer to grant or deny the permit within six months, this section does not require the applicant to obtain the well permit prior to filing an application in water court. The claimant may file in the water court to protect his priority date while an application to construct a well is pending before the state engineer. State Dept. of Nat. Res. v. Sw. Colo. Water Conservation Dist., 671 P.2d 1294 (Colo. 1983).

Landowners of land overlying an aquifer have standing to contest a Denver basin well permit application under this section. Chatfield E. Well Co. v. Chatfield E. Prop. Owners Ass'n, 956 P.2d 1260 (Colo. 1998).

The Colorado Ground Water Management Act creates in the owner of overlying land an inchoate right to control and use a specified amount of nontributary ground water. The right may vest upon construction of a well in accordance with a permit from the state engineer or by adjudication in the water court. E. Cherry Creek Valley Water & Sanitation Dist. v. Rangeview Metro. Dist., 109 P.3d 154 (Colo. 2005).

Rights under prior decree do not limit a later statutory entitlement. Where a landowner has a decree that predates statutory changes, and the decree grants the landowner a portion of the full amount of nontributary ground water to which he is statutorily entitled, the decree will not be interpreted to reduce the amount of water available to the landowner under the statute as subsequently adopted. E. Cherry Creek Valley Water & Sanitation Dist. v. Rangeview Metro. Dist., 109 P.3d 154 (Colo. 2005).

An applicant for a Denver basin well permit must be the landowner or a person who has the landowner's express or statutorily implied consent. Chatfield E. Well Co. v. Chatfield E. Prop. Owners Ass'n, 956 P.2d 1260 (Colo. 1998).

Subsection (4) imposes a total volumetric limit on the amount of nontributary groundwater in Denver Basin that a permit holder may withdraw over the lifetime of a well permit. The volumetric limit is determined by the state engineer and is equal to the quantity of nontributary groundwater underlying the land of the person applying for a well permit. The volumetric limit is calculated at the time the permit issued and may be revised. The volumetric limit of a well permit is equal to one hundred times the maximum annual amount of withdrawal. Unless stated otherwise, the total volumetric limit exists by implication in every nontributary groundwater well permit issued pursuant to subsection (4) of this section. Parker Water & Sanitation Dist. v. Rein, 2024 CO 71M, 559 P.3d 217.

Subsection (8) requires specific notice of governmental entity's intent to adopt an implied consent resolution to appropriation nontributary groundwater in aquifers underlying land within the district's boundaries. Perry Park Water v. Cordillera Corp., 818 P.2d 728 (Colo. 1991).

Subsection (10) entitles the holder of previously issued well permits to the issuance of additional well permits to withdraw nontributary ground water from an aquifer beneath the overlying land. Willows Water Dist. v. Mission Viejo Co., 854 P.2d 1246 (Colo. 1993).

Allowing the applicants credit for runoff water collected from land surfaces that have been made impermeable, thereby eliminating their obligation under subsection (9)(c) to compensate holders of senior rights for injuries that may otherwise result from their withdrawals, would clearly undermine the purpose of the legislature's amendment to the definition of a plan for augmentation contained in § 37-92-103 (9). State Eng'r v. Castle Meadows, Inc., 856 P.2d 496 (Colo. 1993).

After a plan for augmentation has been approved, there must be applications for all well permits addressed to and granted by the state engineer in order for the wells to be constructed under this section. Cache La Poudre Water Users Ass'n v. Glacier View Meadows, 191 Colo. 53, 550 P.2d 288 (1976); Kelly Ranch v. Se. Colo. Water Conservancy Dist., 191 Colo. 65, 550 P.2d 297 (1976).

Consideration for subsequent applications under plan of augmentation. After some wells have been constructed and are operable, on subsequent applications for wells under a plan for augmentation, the state engineer among other things may consider whether the plan actually is operating as contemplated and decreed. Cache La Poudre Water Users Ass'n v. Glacier View Meadows, 191 Colo. 53, 550 P.2d 288 (1976); Kelly Ranch v. Se. Colo. Water Conservancy Dist., 191 Colo. 65, 550 P.2d 297 (1976).

The state engineer was not required to fix an appropriation date of each well for which a permit is issued where one of the fundamentals of the plan for augmentation was that there would be equal priorities between well owners. Cache La Poudre Water Users Ass'n v. Glacier View Meadows, 191 Colo. 53, 550 P.2d 288 (1976).

Approval of plan for augmentation does not eliminate all duties of state engineer. Cache La Poudre Water Users Ass'n v. Glacier View Meadows, 191 Colo. 53, 550 P.2d 288 (1976); Kelly Ranch v. Se. Colo. Water Conservancy Dist., 191 Colo. 65, 550 P.2d 297 (1976).

Permit not required to appropriate appropriated water. Permit to drill water well was not required to be issued by reason of § 6 of art. XVI, Colo. Const., where the evidence supported findings that the applicants were seeking to appropriate appropriated water and § 6 of art. XVI, Colo. Const., relates to the appropriation of unappropriated water. Hall v. Kuiper, 181 Colo. 130, 510 P.2d 329 (1973).

A conditional decree is a vested property right, subject to forfeiture if the holder fails to pursue his conditional water rights with reasonable diligence. Mooney v. Kuiper, 194 Colo. 477, 573 P.2d 538 (1978).

Exempt "602" wells are "vested water rights" for purposes of this section. Application of Turkey Canon Ranch Ltd., 937 P.2d 739 (Colo. 1997).

The "expiration" date to which the statute refers, and from which the one-year renewal period begins, may be either the original expiration date or any new expiration date established by a prior extension. Mooney v. Kuiper, 194 Colo. 477, 573 P.2d 538 (1978).

Drilling and testing a well with temporary pumps does not, in itself, constitute "beneficial use of water" for purposes of tolling the expiration of a well permit. Danielson v. Milne, 765 P.2d 572 (Colo. 1988).

Well permit extensions may be denied if for certain purposes. Since subsection (3)(a) of this section requires that "good cause" be shown as a prerequisite to granting an extension, it thus authorizes the state engineer to deny repeated extensions sought for speculative or other illegitimate purposes. Mooney v. Kuiper, 194 Colo. 477, 573 P.2d 538 (1978).

The operative date for purposes of determining the land on which water rights may be used is the date of appropriation, not the date of adjudication. When a decree is silent regarding the place of use, the actual place of use is an implied term of the decree, and to prevent an expanded use, the state engineer properly modified a replacement well permit to limit the use of water to only those areas that were irrigated on the date of appropriation. V Bar Ranch LLC v. Cotten, 233 P.3d 1200 (Colo. 2010).

This section allows repeated applications for well permit extensions. Mooney v. Kuiper, 194 Colo. 477, 573 P.2d 538 (1978).

The general assembly intended renewable one-year extensions which can be granted when the state engineer, in his sound discretion, finds that good cause has been demonstrated. Mooney v. Kuiper, 194 Colo. 477, 573 P.2d 538 (1978).

Replaced wells must be abandoned. The statutory definition of "replacement well" imposes the obligation to abandon replaced wells upon completion of replacement wells. Broyles v. Ft. Lyon Canal Co., 638 P.2d 244 (Colo. 1981).

Augmentation plan must provide that post withdrawal depletions are replaced if they are injurious to vested water rights. Simpson v. Yale Invs., Inc., 886 P.2d 689 (Colo. 1994).

Factual findings are required to determine injurious effect. Simpson v. Yale Invs., Inc., 886 P.2d 689 (Colo. 1994).

The state engineer must take into account all vested water rights of which he has notice, whether or not adjudicated, in determining the impact of a proposed nonexempt well. This includes exempt wells. Application of Turkey Canon Ranch Ltd., 937 P.2d 739 (Colo. 1997).

Burden of proof of noninjurious effect with applicants. Once applicants have established noninjurious effect the objectors bear the burden of going forward with evidence of injury. Simpson v. Yale Invs., Inc., 886 P.2d 689 (Colo. 1994).

Augmentation plan for gravel pits which are "wells" must make provision for compensating for evaporative losses incident to reclamation use. Zigan Sand & Gravel v. Cache La Poudre, 758 P.2d 175 (Colo. 1988).

Since gravel pits are "wells", excavation of the pits that takes place during mining is part of the process of constructing the well. Therefore, water losses incurred during construction must be replaced. Zigan Sand & Gravel v. Cache La Poudre, 758 P.2d 175 (Colo. 1988).

Requirement that owners and operators who excavate pits after 1980 obtain well permits and augmentation plans while other owners and operators of sand and gravel pits are exempted does not violate equal protection or due process requirements. Act represents a rational effort of the general assembly to achieve the legitimate governmental purpose of developing a program of administration of sand and gravel pits. Cent. Colo. Water v. Simpson, 877 P.2d 335 (Colo. 1994).

Act requiring sand and gravel pit owners and operators who excavate pits after 1980 to obtain well permits and augmentation plans while exempting other owners and operators of sand and gravel pits does not constitute special legislation. The classes established by the general assembly are reasonable, are rationally related to a legitimate governmental interest, and reflect appropriate accommodation of various interests in the administration of the state's appropriation system. Cent. Colo. Water v. Simpson, 877 P.2d 335 (Colo. 1994).

A permit is required for the extraction of methane from coal beds because such an oil and gas well has the effect of obtaining ground water for beneficial use, and is therefore a "well" as defined in this article notwithstanding the Colorado oil and gas commission's exclusive jurisdiction over oil and gas operations. Vance v. Wolfe, 205 P.3d 1165 (Colo. 2009).

The water court erred in holding that a rule promulgated by the state engineer divested the state engineer of jurisdiction over nontributary groundwater located within the boundaries of the Southern Ute Indian Reservation. That jurisdiction is established in subsection (7)(c), and state agencies are powerless to establish or disestablish their own jurisdiction. Pawnee Well Users, Inc. v. Wolfe, 2013 CO 67, 320 P.3d 320.

The filing of a statement of beneficial use is evidence, not irrefutable proof, that water has been applied to a beneficial use; the touchstone to perfecting a well permit is actual beneficial use. Danielson v. Milne, 765 P.2d 572 (Colo. 1988).

The notice requirement contained in subsection (3)(c) cannot be applied retroactively to reinstate a well permit which expired prior to the enactment in 1977 of said subsection. Danielson v. Milne, 765 P.2d 572 (Colo. 1988).

Subsections (1), (2), and (4), when read together, provide the circumstances under which a well applicant may obtain a permit to construct a well on land the applicant does not own. Willows Water Dist. v. Mission Viejo Co., 854 P.2d 1246 (Colo. 1993).

For issuance of a permit to construct wells on land not owned by the applicant, the state engineer or the water court must determine: (1) Whether the landowner has contractually limited the consent such landowner has provided the applicant to construct wells on the overlying land, and (2) whether the construction of the well will materially injure the vested water rights of others. Willows Water Dist. v. Mission Viejo Co., 854 P.2d 1246 (Colo. 1993).

The statutory scheme of this section ensures that the consensual contractual arrangements of parties desiring to allocate nontributary ground water rights among themselves are given effect. Willows Water Dist. v. Mission Viejo Co., 854 P.2d 1246 (Colo. 1993).

For permits previously issued to a nonlandowner based on the consent of an overlying landowner, an application for an additional well permit requires review of the conditions under which the landowner originally consented to the nontributary ground water beneath the landowner's land. Willows Water Dist. v. Mission Viejo Co., 854 P.2d 1246 (Colo. 1993).

Landowners have an inchoate right to extract and use the nontributary water underneath their land in accordance with this section. Until the landowner takes steps to vest this right, the right to extract nontributary ground water is subject to legislative modification or termination. Chatfield E. Well Co. v. Chatfield E. Prop. Owners Ass'n, 956 P.2d 1260 (Colo. 1998).

The right to extract nontributary ground water not in a designated basin exists and may be transferred prior to actual water court adjudication of a right to nontributary water. Bayou Land Co. v. Talley, 924 P.2d 136 (Colo. 1996).

Because the right to withdraw nontributary ground water is integrally associated with and incident to ownership of land, such right is presumed to pass with the land either in a deed or a deed of trust unless explicitly excepted from the conveyance instrument. A party claiming that the right to withdraw nontributary ground water was not transferred with the land must prove that the grantor affirmatively did not intend to transfer such right. Bayou Land Co. v. Talley, 924 P.2d 136 (Colo. 1996); In re Smith, 924 P.2d 155 (Colo. 1996).

Applied in Kenneth M. Good Irrevocable Trust v. Bell, 759 P.2d 48 (Colo. 1988).