Chapter 8 - § 8.6 • RELATIONSHIP BETWEEN DESIGNATED GROUND WATER AND SURFACE WATER

• Jurisdiction: Colorado

§ 8.6 • RELATIONSHIP BETWEEN DESIGNATED GROUND WATER AND SURFACE WATER

Utilizing the discussion on allocation, changes, and administration of designated ground water outlined above within the boundaries of a designated basin, a brief discussion of the relationship between designated ground water and traditional surface water is explored. These tensions and associated issues will continue to arise as this resource is continually developed.

§ 8.6.1—Designated Ground Water And Surface Water⁶⁷

A question frequently arises as to how designated ground water and surface water interact from a legal perspective. By definition, designated ground water can be adjacent or tributary to a non-flowing stream if ground water withdrawals from the area constitute the principal use of water for a minimum of 15 years prior to designation.⁶⁸ Further, the Colorado Supreme Court has indicated that ground water that has a de minimis effect on surface water is not water of a natural stream,⁶⁹ and therefore can be under the plenary authority of the Colorado General Assembly and not of the Colorado Constitution. Designated ground water has been included in this category of ground water that has a de minimis effect.⁷⁰

One issue that arises is the interrelationship between designated ground water and surface water, and which right takes priority. In most designated basins, there are at least a few surface water rights that have priorities senior to the designated ground water rights. Furthermore, there are still some ground water rights within the designated basins that are under the jurisdiction of the water court and the state engineer, not the commission.

Portions of the GMA were developed in 1965 to account for rights that were already adjudicated in the courts prior to designation.⁷¹ Furthermore, the Colorado Supreme Court has determined that ground water rights that are still conditional and have not been finalized are under the jurisdiction of the water court and the state engineer until an absolute water right is issued.⁷²

With ground water that may be under the control of the water court and the state engineer, the commission must make the initial determination as to whether the ground water is designated.⁷³ Only after the commission determines that designated ground water is not at issue will the jurisdiction shift to the water court.⁷⁴ In either case, the state engineer will administer the specific right, and typically, unless directed by the water court, the state engineer will defer the administration of the...