Chapter 8 - § 8.3 • TYPES OF DESIGNATED GROUND WATER ALLOCATIONS OR WITHDRAWALS
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As previously mentioned, designated ground water is appropriated differently based upon the type of designated ground water desired to be withdrawn. This section discusses to what entity and through what process designated ground water is appropriated by type. The discussion starts out with the ability of the state engineer to issue "small capacity" well permits, and then continues with analysis of the commission's permitting activities.
In the administration of designated ground water, the commission and the state engineer have the sole authority to grant any new water rights or changes in water rights involving designated ground water. The water courts do not have any approval authority concerning designated ground water.22 Furthermore, designated ground water management districts do not have any permitting authority within designated basins.23 The districts do have the power to provide comments and recommendations to the commission on any given application, and may adopt rules, in accordance with statute, that may affect the issuance of small capacity well permits by the state engineer.24 However, a discussion of these powers will be reserved as a topic under each type of appropriation discussed below.
§ 8.3.1—Small Capacity Well Permit Issuance
Only the state engineer has the authority to grant small capacity well permits and rain barrels within the designated basins.25 The commission has no authority to direct the state engineer on how or under what circumstances a small capacity well permit or rain barrel26 should be issued.27 The ground water management districts have some authority to direct the state engineer as to how to issue small capacity well permits and rain barrels within their respective boundaries through properly adopted rules.28
Small capacity well permits and rain barrels issued pursuant to this section of the statute are intended by the General Assembly to be small use wells for residences (maximum of three single-family), livestock, and small commercial operations. Furthermore, these wells are limited to no more than one acre of lawn and garden irrigation for either commercial landscaping or residential use. Therefore, due to the limited use, notice and concerns about injury were not required for these wells.
To obtain a small capacity well permit, an application is made to the state engineer, with the appropriate filing fee. To obtain a rain barrel permit, an application is made to the state engineer; however, no filing fee is required. The state engineer reviews the applications according to the statute and properly adopted local ground water management district rules and, if the applications satisfy these requirements, the state engineer issues a permit to construct a well or for a rain barrel to be used for the limited uses authorized by the permit.
Some limitations and nuances of the issuance of small capacity well permits that the state engineer must consider under this section are:
1) If the well is within a subdivision, as defined in C.R.S. § 30-28-101(10), which aquifer the applicant desires as a water source may affect the state engineer's ability to issue a well permit within that source. The state engineer must consider the cumulative effect of all the wells within the specific source and within the subdivision as to their effect on injury to other water rights within that source.29
2) The state engineer may be able to issue a permit for a well that was in existence and used prior to May 8, 1972. This is the date that small capacity wells required registration and evaluation by the state engineer under state law. Wells in existence prior to this date are "grandfathered in" for the uses in existence prior to May 8, 1972. However, these uses cannot exceed the uses currently authorized in C.R.S. § 37-90-105.30
3) The state engineer cannot issue a permit for a small capacity well with an annual withdrawal in excess of five acre-feet unless there is an exception permitted by the local ground water management district.31
4) In evaluating a small capacity well permit application proposing to withdraw ground water from a designated Denver Basin aquifer, the state engineer will not allocate any more ground water from the respective aquifer than is available underlying the land where the well will be located.
Once a well permit or a rain barrel permit is issued and an applicant or other party is aggrieved by a decision of the state engineer (including the issuance or denial of a small capacity well permit application), an appeal is filed and a hearing is conducted before the state engineer pursuant to the Administrative Procedure Act (APA).32 In this proceeding, the applicant has the initial burden of proof to demonstrate why he or she has the right to the small capacity well or rain barrel.33 Once that burden is met, the burden shifts to the other party to demonstrate why the applicant should not be entitled to the well permit or rain barrel. If the applicant or other party is still unsatisfied with the decision of the state engineer, the applicant can appeal this decision to the designated ground water judge for the basin where the well is located.34 The standard of review for the reviewing court is the arbitrary and capricious standard under the APA.
Finally, the administration of small capacity wells can occur through two different entities. The state engineer can administer the terms and conditions of the well permit to ensure no illegali-ties,35 and the local ground water management district may also enforce the terms and conditions of the well permit.36
§ 8.3.2—Commission Permitting Activities — Large Capacity Well Permit Issuance
The permitting activity of the commission for new appropriations can be broken down into designated Denver Basin ground water appropriations and alluvial appropriations.37 Each of these activities are performed by the state engineer through authority granted to him or her by the commis-sion.38 A discussion of each permitting activity followed by a general discussion of the appeal process of these activities is presented below.
Determinations of Ground Water in the Denver Basin Aquifers — Designated Denver Basin Ground Water39
A determination of water right issued by the commission is the water use right for that particular designated Denver Basin aquifer.40 As a result, the unreasonable impairment, water availability, unreasonable waste, and speculation analyses are done at this time.41 However, this water right does not authorize an applicant to withdraw any of the designated Denver Basin ground water. To withdraw designated Denver Basin ground water, the applicant will need a well permit issued pursuant to the determination of water right.42 Nevertheless, the commission's evaluation procedure for determinations of water right is as follows:
1) Applications must be submitted in accordance with the provisions of C.R.S. § 37-90-107(7) for the determinations of rights to designated ground water in the Dawson, Denver, Arapahoe, or Laramie-Fox Hills aquifers. Pursuant to...
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