HomeMy WebLinkAbout851212.tiff GROUND WATER NEWS ;, R,
Colorado Water Congress • 1390 Logan St., Rm. 312 • Denver : (303) 837-0812
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Ground Water News Editors: David Harrison and Mike S May 29, 1985
SUMMARY OF AMENDED SENATE BILL FIVE (Groundwater)
INTRODUCTION
Senate Bill 5, as amended, is now enroute to Governor Lamm. SB 5 has been the
subject of considerable controversy since introduction, including concern about
"injury to the stream system", about insufficient "state engineer control" over the
nontributary water, about "non-expiring well permits" and about "vested property
rights" among other matters. The proponents of the bill have worked long and hard
with opponents to achieve resolution of all of the controversial issues. Much credit
must be given to the Conference Committee ( Senators Bishop, McCormick and Rizzuto and
Representatives Younglund, Paulson and Shoemaker) for their tireless efforts in
achieving a workable compromise.
As the reader knows, in 1983 the Colorado Supreme Court decided the Huston case
and declared that the legislature has plenary power to make the rules which govern
nontributary ground water. The court noted that the legislature had already exercised
this power by adopting Senate Bill 213 in 1973. At the request of the governor in
October, 1983, DNR Director David Getches chaired a committee which met for nine
months and made recommendations to the interim legislative committee, which met four
times last summer to study nontributary ground water law. Senate Bill 5 is the result
of more than one and a half years of debate. One item of consensus on the interim
committee was that only minimum changes in the law were needed at this time.
Senate Bill 5 is a minimum change bill . No changes are made from these basic
rules, which have all been law since at least 1973.
1. In issuing permits for nontributary ground water, it is required that no
material injury to vested water rights result.
2. Nontributary ground water is allocated based on land ownership.
3. Minimum aquifer life of 100 years applies to this ground water.
4. Well permits are required prior to drilling and expire after one year
unless extended.
5. Water court adjudication for nontributary wells is not required, but is
allowed.
6. The state engineer has authority to adopt rules and regulations.
7. Rights to use nontributary ground water are vested property rights. but
they are subject to future legislative controls.
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GROUND WATER NEWS May 29, 1985
Senate Bill 5 does not create new, substantive policies for allocating non-
tributary ground water. —We changes which Senate Bill 5 does make are very specific
and are intended to resolve several areas of confusion under Senate Bill 213. If this
confusion is not clarified by enactment into law of Senate Bill 5, the courts will
continue to make the rules governing nontributary ground water through litigation.
Also, if the confusion over the tributariness of the Denver Basin is not resolved, the
land ownership, 100-year conservation policy may be defeated by speculative
appropriators.
I. SENATE BILL FIVE DEFINES NONTRIBUTARY GROUND WATER WHILE PROTECTING SURFACE
WATER RIGHTS.
PROBLEM: There has never been a statutory definition for nontributary ground water.
Th-e-C-Furts have begun to define it but the limits of that definition are unclear and
will require complex, case-by-case litigation to make it clear. This has resulted
in litigation over quantifying stream effects and augmentation requirements for wells
close to streams, as well as significant delays in permit issuance for wells long
distances from streams.
SOLUTION: Senate Bill 5 enacts a specific definition for nontributary ground water
limiting such rights to ground water withdrawals which would not affect any natural
stream more than 1/10th of 1% after 100 years of pumping. This definition is
narrowly drawn to protect surface streams. Any wells which are tributary under
this definition are required to provide stream augmentation under water court decrees.
Additional rules are adopted for the Denver Basin. Wells within one mile of a stream
must augment all stream depletions. All wells more than one mile from streams but
within the tributary zones must replace four percent (4%) of their pumping to the
stream. Also, the state engineer is authorized to adopt rules and regulations over
even the nontributary wells requiring a relinquishment of up to two percent (2%) of
the pumped water, and outlining other administrative requirements. The state engineer
has now agreed that these restrictions will protect surface water rights from injury.
II. SENATE BILL 5 CLARIFIES LAND OWNERSHIP AND 100 YEARS AQUIFER LIFE RULES.
PROBLEM. Confusion exists over whether the Senate Bill 213 land ownershiip and the
106-year aquifer life rules apply in those parts of the Denver Basin which contain
tributary ground water. This has resulted in decrees for this ground water which
allow larger amounts of withdrawal and faster rates of aquifer depletion than would
be allowed under Senate Bill 213.
SOLUTION: Senate Bill 5 specifically extends the land ownership and 100 year
aquifer life rules to all wells within the Denver Basin, regardless of whether
they are tributary or not. This will result in consistency for all wells and
prevent future rights which could cause faster aquifer depletion, while at the
same time the requirement for stream augmentation in tributary parts of the basin
is retained.
III. SENATE BILL FIVE CLARIFIES IMPLIED CONSENT.
PROBLEM: Implied consent is a means by which municipal and special district water
sup hers may obtain the right to use certain ground water without the express
consent of the landowner. The implied consent provision in Senate Bill 213 is
very confusing and there is no procedure specifying how it should be implemented.
Case-by-case determinations have been made by the courts which have allowed it in
some cases and rejected it in others. Procedures have varied in each case.
GROUND WATER NEWS May 29, 1985
SOLUTION: Senate 8111 5 significantly revises the implied consent provision to
clarify the procedures by which municipal and special district water suppliers
may obtain implied consent. It requires that water service be made available to
any landowner and that an ordinance or resolution be adopted. after due notice,
prior to implementation of implied consent. Implied consent does not apply to
ground water already permitted, decreed, or conveyed to others or which is subject
to a pending water court application. This achieves a balance between the need of
municipal water suppliers to gain access to this ground water, and the rights of
individual landowners.
IV. SENATE BILL FIVE CLARIFIES WELL PERMITTING AND WATER COURT PROCEDURES.
PROBLEM: Under current law, well permits expire after one year and can be extended
or on y one additional year. Statements of beneficial use are required prior to
permit expiration. Water courts have generally required showings of diligence every
four (4) years for nontributary ground water rights which were not yet fully used.
These requirements have forced premature use of ground water in some cases and
litigation over permit expiration in others.
SOLUTION: The "use it or lose it" doctrine is abolished. One year expiring permits
are retained. but multiple, one-year extensions are allowed. Well completion reports
are still required after drilling of the well . A notice of beneficial use may be
required by the state engineer, but not as a prerequisite to preserve the permit.
Diligence findings are not required to maintain court decrees for this ground water.
V. SENATE BILL FIVE RETAINS AND CLARIFIES STATE ENGINEER RULE-MAKING POWERS.
PROBLEM: Senate Bill 213 grants rule-making power over nontributary ground water
to the state engineer but does not specify any substantive standards or clarify the
procedures to be followed for adoption and judicial review of such rules and
regulations. Without clarifying legislation, lengthy litigation will be necessary
to clarify these issues.
SOLUTION: Rule-making power for the state engineer is retained, and is specifically
clarified to be under the State Administrative Procedures Act, but with venue for
judicial review in the water courts. Also, substantive standards for and limitations
upon such rule-making powers are specified rather than being left fDr litigation.
CONCLUSION
Senate Bill 5 is needed to avoid complex and expensive litigation to clear up
these areas of confusion in existing law. Without Senate Bill 5, there is a potential
' for the entire Denver Basin to be considered as tributary, which could result in
depletion much faster than 100 years and avoidance of the land ownership rule. This
result would be contrary to the basic intent behind Senate Bill 213 and should be
clarified without delay. The Colorado Water Congress, therefore, urges CWC members to
write Governor Lamm requesting him to sign Senate Bill FIVE into law.
Comments on the Ground Water News and suggestions for inclusion should be addressed to
either David Harrison, P.O. Box 1440, Boulder, CO 80306 (phone: 303/443-8782) or
Mike Shimmin, P.O. Box 871, Boulder, CO 80306 (phone: 303/443-6151).
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