First Regular Session

Sixty-first General Assembly

LLS NO. 97­0305.01 PLC HOUSE BILL 97­1214

STATE OF COLORADO

BY REPRESENTATIVE Entz;

also SENATOR Dennis.

AGRICULTURE, LIVESTOCK

& NATURAL RESOURCES

A BILL FOR AN ACT

CONCERNING THE REPLACEMENT OF DEPLETIONS FROM NEW WITHDRAWALS OF GROUND WATER IN WATER DIVISION 3 THAT WILL REDUCE THE HYDROSTATIC PRESSURE IN AN AQUIFER, AND, IN CONNECTION THEREWITH, AUTHORIZING THE STATE ENGINEER TO PROMULGATE RULES THAT OPTIMIZE THE USE OF THE GROUNDWATER AND PROVIDE ALTERNATIVE METHODS TO PREVENT INJURY.

Bill Summary

(Note: This summary applies to this bill as introduced and does not necessarily reflect any amendments which may be subsequently adopted.)

Requires judicial approval of a plan for augmentation that effects the replacement of new groundwater depletions in water division 3 that decreases hydrostatic pressure in an artesian or confined aquifer.

Authorizes the state engineer to promulgate rules that optimize ground water use including, if appropriate, a different methodology to prevent injury.

Requires the court to apply this standard or any different methodology adopted by the state engineer to prevent injury in any plan for augmentation.

Be it enacted by the General Assembly of the State of Colorado:

SECTION 1.  37­90­102, Colorado Revised Statutes, 1990 Repl. Vol., is amended BY THE ADDITION OF A NEW SUBSECTION to read:

37­90­102.  Legislative declaration. (3)  THE GENERAL ASSEMBLY FINDS AND DECLARES THAT IN WATER DIVISION 3, ESTABLISHED PURSUANT TO SECTION 37­92­201 (1) (c), THE HYDROLOGIC SYSTEM AND, IN PARTICULAR, THE HYDROLOGY AND GEOLOGY OF THE UNCONFINED AND CONFINED AQUIFER SYSTEMS AND THEIR RELATIONSHIP TO SURFACE STREAMS IN WATER DIVISION 3 ARE AMONG THE MOST COMPLEX IN THE STATE. THE RIO GRANDE AND CONEJOS RIVER AND THEIR TRIBUTARIES HAVE BEEN OVER­APPROPRIATED FOR MANY YEARS. THE FLOW OF MANY SURFACE STREAMS IN WATER DIVISION 3 IS INFLUENCED BY CHANGES IN ARTESIAN PRESSURE. UNLESS PROPERLY AUGMENTED, NEW WITHDRAWALS OF GROUND WATER AFFECTING PRESSURE IN ARTESIAN AQUIFERS WILL MATERIALLY INJURE VESTED SURFACE AND UNDERGROUND WATER RIGHTS. WATER DIVISION 3 IS THE LOCATION OF MANY OF THE STATE'S IMPORTANT WETLAND AREAS AND WILDLIFE REFUGES WHICH, IN PART, ARE SUPPLIED WATER FROM THE ARTESIAN OR CONFINED AQUIFER. THERE IS INSUFFICIENT COMPREHENSIVE DATA AND KNOWLEDGE OF THE RELATIONSHIP BETWEEN THE SURFACE STREAMS AND THE CONFINED AQUIFERS TO PERMIT A FULL UNDERSTANDING OF THE EFFECT OF GROUND WATER WITHDRAWAL, AFFECTING THE HYDROSTATIC PRESSURE IN CONFINED AQUIFERS IN WATER DIVISION 3, UPON THE STREAMS AND AQUIFER SYSTEMS AND THE NATURAL ENVIRONMENT. THE GENERAL ASSEMBLY HEREBY DECLARES THAT UNTIL BETTER AND MORE COMPREHENSIVE DATA IS AVAILABLE, THE BEST WAY TO PREVENT INJURY TO VESTED WATER RIGHTS FROM NEW WITHDRAWALS OF GROUND WATER THAT AFFECT HYDROSTATIC PRESSURE IN AN ARTESIAN OR CONFINED AQUIFER IN WATER DIVISION 3 IS TO REQUIRE THAT DEPLETIONS RESULTING FROM SUCH WITHDRAWALS BE REPLACED TO THE AQUIFER FROM WHICH IT IS WITHDRAWN. BASED UPON SPECIFIC STUDY OF AN AFFECTED AQUIFER, THE STATE ENGINEER MAY ADOPT AQUIFER SPECIFIC RULES TO OPTIMIZE THE USE OF THE GROUNDWATER AND PREVENT INJURY TO VESTED WATER RIGHTS.

SECTION 2.  37­90­137 (2) (b) (II), Colorado Revised Statutes, 1990 Repl. Vol., as amended, is amended BY THE ADDITION OF A NEW SUB­SUBPARAGRAPH to read:

37­90­137.  Permits to construct wells outside designated basins ­ fees ­ permit no ground water right ­ evidence ­ time limitation ­ well permits. (2) (b) (II) (C)  ANY WELL PERMIT APPLICATION IN WATER DIVISION 3 THAT INVOLVES A NEW WITHDRAWAL OF GROUND WATER THAT WILL REDUCE THE HYDROSTATIC PRESSURE IN AN ARTESIAN OR CONFINED AQUIFER SHALL REQUIRE JUDICIAL APPROVAL OF A PLAN FOR AUGMENTATION THAT WILL EFFECT REPLACEMENT OF ALL DEPLETIONS, RESULTING FROM THE USE OF SUCH GROUND WATER, TO THE AQUIFER FROM WHICH THE GROUNDWATER IS WITHDRAWN AT THE TIME AND LOCATION AND IN THE AMOUNT NECESSARY TO PREVENT INJURY TO VESTED WATER RIGHTS OR DECREED CONDITIONAL WATER RIGHTS. BASED UPON SPECIFIC STUDY OF AN AFFECTED AQUIFER, THE STATE ENGINEER MAY, PURSUANT TO THE PROCEDURES OF SECTION 37­92­501 (2), PROMULGATE RULES TO OPTIMIZE THE USE OF SUCH GROUND WATER WHILE PROTECTING THE NATURAL ENVIRONMENT, AND, IF APPROPRIATE, MAY ADOPT A DIFFERENT METHODOLOGY AS PART OF SUCH RULES TO PREVENT INJURY TO THE VESTED WATER RIGHTS AND DECREED CONDITIONAL WATER RIGHTS OF OTHERS.

SECTION 3.  37­92­305 (6), Colorado Revised Statutes, 1990 Repl. Vol., as amended, is amended BY THE ADDITION OF A NEW PARAGRAPH to read:

37­92­305.  Standards with respect to rulings of the referee and decisions of the water judge. (6) (c)  ANY APPLICATION IN WATER DIVISION 3 THAT INVOLVES NEW WITHDRAWALS OF GROUND WATER THAT WILL REDUCE HYDROSTATIC PRESSURE IN AN ARTESIAN OR CONFINED AQUIFER SHALL REQUIRE APPROVAL OF A PLAN OF AUGMENTATION THAT WILL EFFECT REPLACEMENT OF ALL DEPLETIONS, RESULTING FROM THE USE OF SUCH GROUND WATER, TO THE AQUIFER FROM WHICH THE WATER IS WITHDRAWN AT THE TIME AND LOCATION AND IN THE AMOUNT NECESSARY TO PREVENT INJURY TO VESTED WATER RIGHTS OR DECREED CONDITIONAL WATER RIGHTS. IF A DIFFERENT METHODOLOGY FOR PREVENTION OF INJURY HAS BEEN ADOPTED BY THE STATE ENGINEER PURSUANT TO THE REQUIREMENTS OF SECTIONS 37­90­137 (2) (b) (II) (C) AND 37­92­501 (2), THEN THE COURT SHALL APPLY THAT METHODOLOGY.

SECTION 4.  Applicability. This act shall take effect upon passage and shall apply to all new and pending applications for well permits filed with the division of water resources in the department of natural resources for wells to be located in water division 3 or any applications concerning water rights filed with the water clerk for water division 3.

SECTION 5.  Safety clause.  The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.