Chapter 22 - § 22.2 • RESPONSIBILITIES OF THE COMMISSION

• Jurisdiction: Colorado

§ 22.2 • RESPONSIBILITIES OF THE COMMISSION

§ 22.2.1—Determination Of Designated Ground Water Basins

"Designated ground water" is defined under C.R.S. § 37-90-103(6)(a) to be

groundwater which in its natural course would not be available to and required for the fulfillment of decreed surface rights, or groundwater in areas not adjacent to a continuously flowing natural stream wherein groundwater withdrawals have constituted the principal water usage for at least fifteen years preceding the date of the first hearing on the proposed designation of the basin . . . .

It does not include Denver basin waters located outside the boundaries of any designated basin in existence prior to January 2, 1983.¹⁰

Pursuant to C.R.S. §§ 37-90-106(2) and -112, only the Colorado Ground Water Commission can authorize the designation or subdivision of a ground water basin. When the commission is in the process of making a determination for designation of a ground water basin, surface and ground water users within the boundaries of the proposed designation are provided notice, and allowed to be a proponent or objector to the classification, and a hearing is held.¹¹ Based on the facts presented at the hearing, the commission then enters an order creating, modifying, or dismissing the proposal.¹² Once this designation occurs, the nature of the water in that basin changes from administration and adjudication under the 1969 Act to administration and adjudication under the 1965 Act based upon a modified prior appropriation system between wells within the basin. In making this type of designation, the commission is also determining that the withdrawal of the waters designated have a de minimis effect on surface streams.¹³

In 2010, C.R.S. § 37-90-106(1)(a) was amended to reaffirm the General Assembly's original intent that there be a cutoff date whereby the legal status of ground water included in a designated basin could not be challenged. After a designated basin determination becomes final, exclusion of lands from that basin can occur only if factual data justify the alteration and the alteration would not exclude from the basin any well for which a conditional or final permit to use designated ground water has been issued. New designated basins can still be created and lands can be added to existing designated basins when adequate factual data is obtained and justifiable. The amendment to the statute does not affect pending litigation brought under § 106 prior to January 1, 2010.¹⁴

§ 22.2.2—Rules And Regulations

The commission and ground water management districts may promulgate rules and regulations to assist in implementing the provisions of the 1965 Act.¹⁵ The commission has promulgated two sets of rules. The Ground Water Commission's Rules of Procedure for All Adjudicatory Hearings¹⁶ govern the conduct of hearings held by the commission and its hearing officer in the conduct of rule-making and hearings concerning applications for well permits. The rules generally follow the Administrative Procedures Act's¹⁷ laws for the conduct of hearings, but do set forth guidelines that allow for hearsay evidence, informal discovery, and a more informal setting for the gathering of factual information to be presented in the adjudicatory process. Many objectors and applicants participate in these hearings without the assistance of legal counsel. For more detailed information on the conduct of hearings before the commission, see § 22.4, "Hearings by the Commission and Judicial Review."

Rules adopted by the commission entitled the Rules and Regulations for the Management and Control of Designated Ground Water (Commission Rules)¹⁸ assist commission staff in carrying out the provisions of the Ground Water Management Act by setting forth management criteria and allowable rates of depletion for ground water in each existing ground water basin. The management criteria establishes a basis to determine whether proposed permits, changes in water rights, and replacement plans might result in unreasonable impairment or material injury to existing water rights. These regulations are constantly being updated to enhance the proper management of the resource.

These rules, in many instances, are specific to each particular basin. Therefore, consulting the rules concerning the particular basin of interest is advised.

Currently, 13 ground water management districts have promulgated rules and regulations specifically tailored for the needs of the local district in their administration of ground water within their boundaries. For specific details, see the Colorado Division of Water Resources' website at www.water.state.co.us.

§ 22.2.3—Granting Of Large Capacity Well Permits

The issuance of a new well permit outside of the designated basin's Denver Basin aquifers is determined by the staff of the commission pursuant to C.R.S. § 37-90-107. Once issued, these well permits are, in essence, new conditional water rights that require the conditional permit holder to drill the well within one year and place the water to beneficial use within three years of the date of permit issuance.¹⁹

In determining if an application can be given favorable consideration, the staff is required to make a preliminary evaluation that water is available for appropriation, the withdrawal will not cause unreasonable impairment to other vested water rights, and the withdrawal is not unreasonably waste-ful.²⁰ This statute has three criteria for granting a determination of rights to appropriate the requested designated ground water:

1) Ground water must be available for appropriation;
2) The proposed appropriation must not unreasonably impair existing water rights; and
3) The permitted uses must not cause unreasonable waste.

If a favorable consideration of the application is provided by the staff, the application is then published in a newspaper of general circulation in the county in which the water right is being sought.

C.R.S. § 37-90-107(4) allows water right owners who may be affected by a proposed application to object to the application.²¹ Once objections are received, a hearing is held and

[i]f after such hearing it appears that there are no unappropriated waters in the designated source or that the proposed appropriation would unreasonably impair existing water rights from such source or would create unreasonable waste, the application shall be denied; otherwise, it shall be granted in accordance with subsection (3) of this section.

C.R.S. § 37-90-107(5) provides guidance as to what must be taken into consideration in determining whether an application can be granted. It states:

In ascertaining whether a proposed use will create unreasonable waste or unreasonably affect the rights of other appropriators, the commission shall take into consideration the area and geologic conditions, the average annual yield and recharge rate of the appropriate water supply, the priority and quantity of existing claims of all persons to use the water, the proposed method of use, and all other matters appropriate to such questions. With regard to whether a proposed use will impair uses under existing water rights, impairment shall include the unreasonable lowering of the water level, or the unreasonable deterioration of water quality, beyond reasonable economic limits of withdrawal or use.

It is important to note that legal arguments have occurred surrounding the functions of the commission and management districts. In Upper Black Squirrel Creek Ground Water Management District v. Goss,²² the court found:

Our construction of the Management District's authority implements changes to the Ground Water Management Act that the General Assembly adopted in 1979 and 1998. By these amendments, the legislature enacted a general demarcation between the Commission's permitting functions and the management districts' administrative and regulatory functions after permit issuance. See 1979 Colo. Sess. Laws 1371, 1373-75 (Management District's administrative and regulatory authority applies after issuance of "final" permit) superseded by 1998 Colo. Sess. Laws 1211, 1222-24 (deleting the word "final" to provide for administrative and regulatory authority commencing after issuance of conditional permit).

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