Colorado § 37-92-501 - Jurisdiction over water - rules and regulations.

§ 37-92-501. Jurisdiction over water - rules and regulations.

(1) The state engineer and the division engineers shall administer, distribute, and regulate the waters of the state in accordance with the constitution of the state of Colorado, the provisions of this article and other applicable laws, and written instructions and orders of the state engineer, in conformity with such constitution and laws, and no other official, board, commission, department, or agency, except as provided in this article and article 8 of title 25, C.R.S., has jurisdiction and authority with respect to said administration, distribution, and regulation. It is the legislative intent that the operation of this section shall not be used to allow groundwater withdrawal which would deprive senior surface rights of the amount of water to which said surface rights would have been entitled in the absence of such groundwater withdrawal and that groundwater diversions shall not be curtailed nor required to replace water withdrawn, for the benefit of surface right priorities, even though such surface right priorities be senior in priority date, when, assuming the absence of groundwater withdrawal by junior priorities, water would not have been available for diversion by such surface right under the priority system. The state engineer may adopt rules and regulations to assist in, but not as a prerequisite to, the performance of the foregoing duties.

(2) In the adoption of such rules and regulations the state engineer shall be guided by the principles set forth in section 37-92-502 (2) and by the following:

(a) Recognition that each water basin is a separate entity, that aquifers are geologic entities and different aquifers possess different hydraulic characteristics even though such aquifers be on the same river in the same division, and that rules applicable to one type of aquifer need not apply to another type. All other factors being the same, aquifers of the same type in the same water division shall be governed by the same rules regardless of where situate.

(b) Consideration of all the particular qualities and conditions of the aquifer;

(c) Consideration of the relative priorities and quantities of all water rights and the anticipated times of year when demands will be made by the owners of such rights for waters to supply the same;

(d) Recognition that one owner may own both surface and subsurface water rights;

(e) That all rules and regulations shall have as their objective the optimum use of water consistent with preservation of the priority system of water rights;

(f) That rules and regulations may be amended or changed from time to time within the same aquifer dependent upon the then existing and forecast conditions, facts and conditions as then known, and as knowledge of the aquifer is enlarged by operating experience;

(g) That time being of the essence, rules and regulations and changes thereof proposed for an aquifer shall be published once in the county or counties where such aquifer exists not less than sixty days prior to the proposed adoption of such rules and regulations, and copies shall be mailed by the water clerk of the division to all persons who are on the mailing list of such division. Copies of such proposed regulations shall be available without charge to any owner of a water right at the office of the water clerk.

(3) (a) Any person desiring to protest a proposed rule and regulation may do so in the same manner as provided in section 37-92-304 for the protest of a ruling of a referee, and the water judge shall hear and dispose of the same as promptly as possible.

(b) Any such protest must be filed by the end of the month following the month in which such proposed rules and regulations are published.

(4) (a) In addition to the provisions of subsection (2) of this section, when adopting rules governing the use of underground water in division 3, and in recognition of the unique geologic and hydrologic conditions and the conjunctive use practices prevailing in division 3, the state engineer shall have wide discretion to permit the continued use of underground water consistent with preventing material injury to senior surface water rights. Any reduction in underground water usage required by such rules shall be the minimum necessary to meet the standards of this subsection (4). In regulating an aquifer or system of aquifers in division 3, the state engineer shall apply the following principles:

(I) Use of the confined and unconfined aquifers shall be regulated so as to maintain a sustainable water supply in each aquifer system, with due regard for the daily, seasonal, and long-term demand for underground water;

(II) Unconfined aquifers serve as valuable underground water storage reservoirs with water levels that fluctuate in response to climatic conditions, water supply, and water demands, and such fluctuations shall be allowed to continue;

(III) Fluctuations in the artesian pressure in the confined aquifer system have occurred and will continue to occur in response to climatic conditions, water supply, and water demands. Subject to subparagraph (IV) of this paragraph (a), such pressure fluctuations shall be allowed with the ranges that occurred during the period of 1978 through 2000. Artesian pressures shall be allowed to increase in periods of greater water supply and shall be allowed to decline in periods of lower water supply in much the same manner and within the same ranges of fluctuation as occurred during the period of 1978 through 2000, while maintaining average levels similar to those that occurred in 1978 through 2000.

(IV) Nothing in subparagraph (I) or (II) of this paragraph (a) shall be construed either to relieve wells from the obligation to replace injurious stream depletions in accordance with the rules adopted by the state engineer or to permit the expanded use of underground water; and

(V) Underground water use shall not unreasonably interfere with the state's ability to fulfill its obligations under the Rio Grande compact, codified in article 66 of this title, with due regard for the right to accrue credits and debits under the compact.

(b) In adopting rules pursuant to paragraph (a) of this subsection (4), the state engineer shall:

(I) Recognize contractual arrangements among water users, water user associations, water conservancy districts, ground water management subdistricts, and the Rio Grande water conservation district, pursuant to which:

(A) Water is added to the stream system to assist in meeting the Rio Grande compact delivery schedules or to replace depletions to streamflows resulting from the use of underground water; or

(B) Subject to subparagraphs (I), (II), and (III) of paragraph (a) of this subsection (4), injury to senior surface water rights resulting from the use of underground water is remedied by means other than providing water to replace stream depletions;

(II) Establish criteria for the beginning and end of the division 3 irrigation season for all irrigation water rights;

(III) Not recognize the reduction of water consumption by phreatophytes as a source of replacement water for new water uses or to replace existing depletions, or as a means to prevent injury from new water uses; and

(IV) Not require senior surface water right holders with reasonable means of surface diversions to rely on underground water to satisfy their appropriative water right.

(c) The state engineer shall not curtail underground water withdrawals from aquifers in division 3 that are included in a ground water management subdistrict created pursuant to section 37-45-120 or 37-48-108 if the withdrawals are made pursuant to a groundwater management plan adopted by the subdistrict that meets the requirements of paragraphs (a) and (b) of this subsection (4). The state engineer shall publish notice of the approval of any groundwater management plan in the same manner as provided for rules under paragraph (g) of subsection (2) of this section, and judicial review of such approval shall be pursuant to paragraph (a) of subsection (3) of this section. The water judge shall retain jurisdiction over the water management plan for the purpose of ensuring the plan is operated, and injury is prevented, in conformity with the terms of the court's decree approving the water management plan.

Source: L. 69: p. 1216, § 1. C.R.S. 1963: § 148-21-34. L. 71: p. 1331, § 2. L. 2004: (4) added, p. 777, § 1, effective May 20.

Cross references: For the "Colorado Water Quality Control Act", see article 8 of title 25; for the proceedings by the water judge, see § 37-92-304.

ANNOTATION

Law reviews. For article, "Adjudication of Indian and Federal Water Rights in the Federal Courts", see 46 U. Colo. L. Rev. 555 (1974-75). For article, "Recent Developments in Colorado Groundwater Law", see 58 Den. L.J. 801 (1981). For comment, "Bubb v. Christensen: The Rights of the Private Landowner Yield to the Rights of the Water Appropriator Under the Colorado Doctrine", see 58 Den. L.J. (1981). For article, "The Physical Solution in Western Water Law", see 57 U. Colo. L. Rev. 445 (1986). For article, "Colorado's Law of 'Underground Water': A Look at the South Platte Basin and Beyond", see 59 U. Colo. L. Rev. 579 (1988). For article, "The Constitution, Property Rights and the Future of Water Law", see 61 U. Colo. L. Rev. 257 (1990).

Division engineer evaluates each junior appropriator's diversion to determine material injury caused. The statutory plan in this section and § 37-92-502 contemplates that the division engineer will evaluate each junior appropriator's diversion to determine whether it is causing material injury to water rights having senior priorities before ordering the discontinuance of the diversion by the junior appropriator. Southeastern Colo. Water conservancy Dist. v. Rich, 625 P.2d 977 (Colo. 1981).

Since the language in this statute on regulations by the state engineer is permissive, it does not require a surface appropriator to apply ground water to his decree before making a call. Kuiper v. Well Owners Conservation Ass'n, 176 Colo. 119, 490 P.2d 268 (1971).

Stream administration. Streams independently appropriated remain independent under the doctrine of prior appropriation unless the water of those streams becomes subject to equitable apportionment by compact, in which case the streams must be administered as mandated by the compact or statutory provisions for priority administration of water rights. Alamosa-La Jara Water Users Prot. Ass'n v. Gould, 674 P.2d 914 (Colo. 1983).

State engineer may promulgate and enforce appropriate rules. In order to promulgate and enforce rules for compliance with Rio Grande river compact commitments, the state engineer may promulgate and enforce appropriate rules for the administration of water rights. In re Rules & Regulations Governing Water Rights, 196 Colo. 197, 583 P.2d 910 (1978).

Given an irreconcilable conflict between intrastate priority administration and compliance with an interstate compact, it is compact compliance that must take precedence. Simpson v. Bijou Irrigation Co., 69 P.3d 50 (Colo. 2003).

Burden of proof to support amendment to rules. The state engineer has the burden of proof, by a preponderance of the evidence, in a proceeding to determine the validity of a proposed amendment to rules, adopted pursuant to this section, governing the use of ground water. Kuiper v. Atchison, T. & S.F. Ry., 195 Colo. 557, 581 P.2d 293 (1978).

State engineer's authority to apply compact tributary rule. A compact requiring administration of the Rio Grande mainstem and Conejos river according to delivery schedules that did not include the contributions of three creeks as significant to the delivery obligation did away with the state engineer's authority to apply the tributary rule of the compact to the three creeks. Alamosa-La Jara Water Users Prot. Ass'n v. Gould, 674 P.2d 914 (Colo. 1983).

Regulations of the state engineer are presumed to be valid until shown otherwise by a preponderance of the evidence. Kuiper v. Well Owners Conservation Ass'n, 176 Colo. 119, 490 P.2d 268 (1971).

Regulations need not be uniform throughout the state. Kuiper v. Well Owners Conservation Ass'n, 176 Colo. 119, 490 P.2d 268 (1971).

Rules may take effect only after all protests have been heard and resolved by the water court. Simpson v. Bijou Irrigation Co., 69 P.3d 50 (Colo. 2003).

The procedural requirements specified in this section for the promulgation of rules control over conflicting portions of the state Administrative Procedure Act. Simpson v. Cotton Creek Circles, LLC, 181 P.3d 252 (Colo. 2008).

Water judge may award costs to the prevailing party, which may include a private party who supported the rule. The statute specifies that the procedures are "the same" as for a protest of a ruling of the referee pursuant to § 37-92-304 and are therefore sufficiently trial-like to justify the authority to award costs. Cotton Creek Circles v. Rio Grande Water Conservation Dist., 218 P.3d 1098 (Colo. 2009).

When adjudicated priorities are not being filled as a result of pumping unappropriated ground water, it cannot be said that this ground water is unappropriated. Kuiper v. Well Owners Conservation Ass'n, 176 Colo. 119, 490 P.2d 268 (1971).

If the regulation of wells which are inferior in priority will reasonably contribute to the satisfaction of earlier priorities, the owners of the wells cannot be heard to say that they have a right to continue the use thereof. Kuiper v. Well Owners Conservation Ass'n, 176 Colo. 119, 490 P.2d 268 (1971).

Automatic cessation of diversions by junior appropriator not contemplated. This section and § 37-92-502 do not contemplate automatic cessation of diversions by a junior appropriator in response to a river call. Southeastern Colo. Water Conservancy Dist. v. Rich, 625 P.2d 977 (Colo. 1981).

This section does not authorize a water judge to approve the use of salvaged water for augmentation credits free of the call of the river; rather, it merely gives administrative discretion to the state engineer. In re Water Rights of Park County Sportsmen's Ranch, 105 P.3d 595 (Colo. 2005).

Diversions made pursuant to water right considered historical use where not ordered discontinued. Where the water commissioner was aware of the landowners' diversions of water and had never ordered them to be discontinued or limited, the diversions made pursuant to a water right, though not in priority, could be considered as establishing an historical use for the purpose of the change of water right. Southeastern Colo. Water Conservancy Dist. v. Rich, 625 P.2d 977 (Colo. 1981).

Regulations found to promote development and use of underground water. Kuiper v. Well Owners Conservation Ass'n, 176 Colo. 119, 490 P.2d 268 (1971).

Maximum utilization of an aquifer is not license to get all the water from it, but rather the objective of "maximum use" administration is "optimum use" which can only be achieved with proper regard for all significant factors, including economic and environmental concerns. Alamosa-La Jara Water Users Prot. Ass'n v. Gould, 674 P.2d 914 (Colo. 1983).

Aquifer-wide determination of material injury. Under rules proposed by the state engineer, individuals retained the right in "each case" to challenge the application of an aquifer-wide determination of material injury to "each diversion", but since the streams were over-appropriated and underground water diversions from the aquifer were found to significantly affect stream flow, it was presumed that each underground water diversion materially injured senior appropriators; therefore, the state engineer was not required to repeat for every well the analysis which lead to the aquifer-wide determination of material injury. Alamosa-La Jara Water Users Prot. Ass'n v. Gould, 674 P.2d 914 (Colo. 1983).

Because the confined aquifer is overappropriated, the requirement that the state engineer allow the confined aquifer's artesian pressure to fluctuate only within a stated historic range does not violate the constitutional right to divert unappropriated water. Simpson v. Cotton Creek Circles, LLC, 181 P.3d 252 (Colo. 2008).

The state engineer's rules that specify that unappropriated water is not made available as a result of the reduction of water consumption by "nonirrigated native vegetation" are valid even though the statute prohibits the rules from recognizing the reduction of water consumption by "phreatophytes". Because the rules mirror statutory law, they do not exceed the scope of the statutory authority. Simpson v. Cotton Creek Circles, LLC, 181 P.3d 252 (Colo. 2008).

The subdistrict's ground water management plan is sufficiently comprehensive and detailed to permit the continued use of ground water consistent with preventing material injury to senior surface water rights. It accomplishes this by being able to reliably estimate annual depletions in time, amount, and location and by having adequate financial mechanisms in place to either acquire the necessary replacement water, reduce depletions, or both. One permissible mechanism is the option of entering into contracts with non-subdistrict well owners for replacement water. The ground water model incorporated into the plan may not account for changes in evapotranspiration caused by the eradication of phreatophytes, but may account for changes in evapotranspiration caused by fluctuations in the ground water table as contemplated by the statute. If the subdistrict does not comply with its approved plan, or if the plan as implemented does not actually prevent material injury, the state engineer must curtail ground water diversions to protect senior surface water rights. San Antonio v. Special Improv. Dist. No. 1, 270 P.3d 927 (Colo. 2011).

A groundwater management subdistrict's adoption of an annual replacement plan is not reviewed according to the standards established by this section for the adoption of a groundwater management plan. An annual replacement plan is not an extension or completion of a groundwater management plan; rather, the court retains jurisdiction to review whether the actual operation of an annual replacement plan is adequate to avoid injury. Thus, the annual replacement plan can operate pending the court's review, and the water court correctly denied objectors' motion to compel the state engineer to curtail all groundwater pumping. Further, the objectors' contention that the subdistrict's groundwater management plan violates this section is precluded by this court's previous decision in San Antonio v. Special Improv. Dist. No. 1, 270 P.3d 927 (Colo. 2011), as is objectors' argument that the annual replacement plan's use of closed basin project water as a source of replacement water is prohibited. Rio Grande Water v. Special Imp. Dist. 1, 2015 CO 52, 351 P.3d 1112.

Although this section directs the state engineer to regulate state waters, it does not exempt all water projects from local regulation. Denver v. Bd. of County Comm'rs, 782 P.2d 753 (Colo. 1989).

Regulations found not to be fatally vague, unenforceable, or unreasonable. Kuiper v. Well Owners Conservation Ass'n, 176 Colo. 119, 490 P.2d 268 (1971).

Federal reserved water rights. The United States possesses reserved rights for its federal reservations in Colorado in waters unappropriated upon the date of reservation of the federal lands from the public domain, and in the amount necessary to achieve the primary purposes of the reservations. United States v. City & County of Denver, 656 P.2d 1 (Colo. 1982).

Reserved rights determined by Colorado law. Colorado law governing the determination of water rights is properly applied as the rule of decision by which the courts will determine the contours of the reserved rights asserted by the United States. United States v. City & County of Denver, 656 P.2d 1 (Colo. 1982).

Administration by state engineer. Federal reserved water rights ultimately adjudicated to the United States are subject to administration by the state engineer. United States v. City & County of Denver, 656 P.2d 1 (Colo. 1982).

For extent of federal reserved water rights on different categories of public lands, see United States v. City & County of Denver, 656 P.2d 1 (Colo. 1982).

The state engineer has authority under this section to determine how to administer the one-fill rule when a storage decree does not address how diversions are to be accounted for. N. Sterling Irrig. Dist. v. Simpson, 202 P.3d 1207 (Colo. 2009).

Applied in Pioneer Irrigation Dists. v. Danielson, 658 P.2d 842 (Colo. 1983).