ABOUT COLORADO WELL PERMITS & WATER RIGHTS
The Colorado Division of Water Resources issues water well permits, administers water rights, monitors stream flow and water use, inspects dams for safety, maintains databases of Colorado water information, and represents Colorado in interstate water compact proceedings. For over 125 years, Colorado has used a system of water allocation known as the prior appropriation doctrine. Under this doctrine, the first appropriator of water has a senior right to that water, and that right must be satisfied before any subsequent rights junior to that right can receive water. The Division of Water Resources is empowered to administer all surface and ground water rights throughout the state and ensure that this doctrine is enforced. By law, every new well in the state that diverts ground water must have a well permit. In order to obtain a permit, a person must file an application for approval of a permit with the State Engineer. Over 10,000 applications are submitted for review annually, and the Division of Water Resources determines the amount of water available and analyzes the potential for injury to other existing water rights under strict statutory guidelines.
PURCHASING A PROPERTY WITH A WELL OR SURFACE WATER RIGHTS
WHAT TO ASK AND WHERE TO GET ADDITIONAL INFORMATION
Purchasing property usually involves a substantial financial investment and long-term commitment. Prior to making a purchase, the more information you can obtain about any water resources connected with the property, the better off you will be in the long run. Individual on-lot wells – If there is a residence on the property, find out if it is served by an individual on-lot well or central water supply system. If served by a well, ask questions about the well. How old is it? Is it registered with the Division of Water Resources? If it was put to use prior to May 8, 1972, it may or may not be registered. Any production well used for residential and/or livestock watering purposes, that was constructed after May 8, 1972, should have a permit file on it. The Division of Water Resources maintains all well permit files. Files usually contain useful information about the well. To find the appropriate file, try to obtain the well permit number, or at a minimum, the section, township, and range location of the well and the name of the party that may have obtained the well permit. Water uses are restricted by Colorado state statutes, well permit conditions of approval, county regulations, and subdivision covenants. Don’t fall into the trap, as many have when purchasing property, of envisioning your own little paradise, complete with home, lawns, gardens and horses, only to find out that the well use restrictions limit the use of ground water to in-house uses only.
Well pumping rates – Ask the seller your real estate agent what the current pumping rate of the well is. Well pumping rates are measured in gallons per minute. Prior to purchasing the property, consider having a well pump test done by a qualified party, such as a Colorado licensed pump installer or water well driller. A current listing of pump installers and drillers, arranged alphabetically by city, is available at this website . Low-yield wells may be able to supply a sufficient quantity of water for the intended purpose if used in conjunction with properly sized storage tanks and controlled pumping systems. There will be some water storage in the well itself. For every foot of water in a typical residential well with a four-inch diameter casing, there are 0.66 of a gallon of water in storage. You can do a quick assessment of daily water needs for in-house uses only. A rule of thumb is to allow 75 gallons per person per day. Therefore, a family of four will require approximately 300 gallons per day for in-house uses. Again, a qualified well tester could be helpful in properly assessing the well’s capabilities and providing recommendations regarding a low-yield well situation.
Ask about the current water quality. Prior to purchasing the property, consider having the well water tested by a state-certified laboratory. The Water Quality Control Division of the Colorado Department of Public Health and Environment can be contacted at 303-692-3500, and can provide a listing of state-certified laboratories in Colorado. Information may also be accessed from their website. You can also contact the Gunnison County Health Department. Some counties can perform a bacteriological/coliform test for water potability. The Division of Water Resources does not do any water quality testing. Do an on-site visual inspection of the well and property you are thinking of purchasing. Is the well physically located on the property? Does the location of the well allow for easy access for repair and maintenance? Does the well appear to be in a sanitary condition? Is the ground surface around the well head sloped such that there would be positive surface drainage away from it? Is the well casing visibly sticking up above the ground surface, and is there a weather-tight seal on top of the casing? Does the visible well casing appear to be made of steel? How far away is the wellhead from any known contamination sources, such as septic tank and leach field disposal systems? The current Water Well Construction Rules require that a well shall not be located closer than 100 feet horizontally to the nearest source of contaminants or 50 feet from a septic tank, sewer line or other vessel containing contaminants, unless a variance to this rule is granted by the Board of Examiners of Water Well Construction and Pump Installation Contractors. State, county, municipal or local government regulations must be complied with if more stringent than the Board of Examiners’ Water Well Construction Rules. Are there any existing abandoned wells on the property that are open and not plugged? Try talking to neighboring property owners who are on well water and get their comments on water quality. Ask if they know the depths of their wells and compare it with that of the well you are assessing. Their comments and experiences can be a helpful source of information.
Ask about the well’s construction – The State has an inspection program in place for well construction. While inspections are not done for every well constructed, random inspections are done throughout the state to ensure compliance with the Water Well Construction Rules. Water well drilling contractors must be licensed and bonded. Make sure your contractor is licensed by the Board of Examiners of Water Well Construction and Pump Installation Contractors.
Well ownership transfer – Each time the ownership or mailing address of a permitted well changes, a “Change in Ownership/Address” form (GWS-11) must be submitted to the State of Colorado Division of Water Resources. No fee is required. The form can be downloaded from their website.
Some properties located in our community are hooked up to central water supply systems. If you are purchasing property that is served by a central water supply system, find out what you can about the system and the supplier. Is the water supply from central wells or treated surface water supplies, such as a reservoir? Who is responsible for operation and maintenance of the system? Consider contacting the water supplier and asking about the reliability of the system, and the fee structure. Ask what water uses are allowed. You may be able to obtain water quality information as well.
WHAT IS AN AUGMENTATION PLAN?
If you are considering using wells to provide water for lawn and garden uses, domestic animals, a subdivision, or another project, you should be aware that in some areas of Colorado you may be unable to get a well permit without an augmentation plan. An augmentation plan is a court-approved plan, which is designed to protect existing water rights by replacing water used in a new project. Augmentation plans are usually required in areas where there is a shortage of water during part or all of the year. To determine whether or not you need an augmentation plan, you should consult with the Division of Water Resources office responsible for administering water in the area in which your project will be located.
WHAT CAN I DO WITH THAT SPRING ON MY PROPERTY?
Although the Colorado State statutes do not specifically define a spring, a hydrologic definition is “a discharge of ground water on the surface in sufficient quantities so as to produce a current of flowing water.”A change in the law in 1995 provided an exception to the definition of a well for certain limited excavated spring developments of natural springs. If the spring development meets the following conditions, it is excluded from requiring a well permit or compliance with the Water Well Construction Rules: 1. the structure or device used to capture or concentrate the natural spring discharge must be located at or within 50 feet of such spring; 2. the structure or device used to capture or concentrate the natural spring discharge must be no more than ten feet below ground surface; and 3. the owner must adjudicate (obtain a water right through the water court) the structure or device as a spring, which would then be subject to administration in the priority system with all other water rights. If the spring development fails to meet the above conditions, it must be considered a well, which withdraws ground water, and all of the laws associated with a well apply. If the spring development does meet the above conditions, it is not mandatory that it be considered a spring subject to administration in priority. It is the owner’s option to either adjudicate the structure as a spring or permit it as a well. If permitted as a well, the owner must comply with the requirements of the Water Well Construction Rules regarding well construction and variances thereto.
Most of the state’s natural surface drainage systems are over-appropriated by senior vested water rights. In simplistic terms, that means that there are more decreed water rights claims on the system than can be satisfied by the physical amount of water available. Therefore, under the priority system (“first in time, first in right”), when the most senior rights are making a call for water, the most junior rights have to curtail diverting until the calling senior rights are satisfied. A new water right for a developed spring would be so junior, that on an over-appropriated drainage system, there may be few or no times of the year when water could be beneficially used from the spring. It might seem then that it would be most advantageous to call the structure a well, but that is not necessarily true. A potential problem is that if there is already a well on the property, you may not be able to obtain a permit to permit the spring as a well. Furthermore, even if there was no existing well on the property and you were able to obtain a permit, in many areas of the state, the use of the water would be limited to in-house use only if the well were to be the only well on less than 35 acres. Additionally, use of a shallow spring well as a water source for a residential dwelling raises questions about the quality of the water and the dependability of the supply.
WATER RIGHTS IN COLORADO & THE PRIOR APPROPRIATION SYSTEM
Water rights in Colorado are unique compared to parts of the eastern United States. The use of water in this state and other western states is governed by what is known as the prior appropriation system. This system of water allocation controls who uses how much water, the types of uses allowed, and when those waters can be used. A simplified way to explain this system is often referred to as the priority system or “first in time, first in right.” An appropriation is made when an individual physically takes water from a stream or well (when legally available) and puts that water to some type of beneficial use. The first person to appropriate water and apply that water to use has the first right to that water within a particular stream system. This person, after receiving a court decree verifying their priority status, then becomes the senior water right holder and that water right must be satisfied before any other water rights are filled.
For example, three water users exist on a stream system with adjudicated (court approved) water rights totaling five cfs (cubic feet per second). The user with the earliest priority date has a decree for two cfs, the second priority has a right for two cfs, and the third priority right has a decree for one cfs of water. When the stream is carrying five cfs of water or more, all of the rights on this stream can be fulfilled. However, when the stream is carrying only three cfs of water, priority number three will not receive any water, with priority number two receiving only half of their right. Priority number one will receive their full amount of two cfs under this scenario. This process of allocating water to various water users is traditionally referred to as water rights administration, and is the responsibility of the Division of Water Resources.
Of course, the appropriation system is much more complicated than this. Some priorities on major stream systems in Colorado date back to the 1850’s, and most of the stream systems have been over-appropriated, meaning that at some or all times of the year, a call for water by a senior appropriator is not being satisfied since the 1890’s. The example above does, however, describe the basic theory behind the system. How does this affect you? Practically speaking, it means that in most river drainages, a person cannot obtain an underground water right or non-exempt well without a plan for augmentation that replaces the depletions associated with that diversion. Surface water appropriations may still be allowed if they can be physically shut off when a senior water right is calling for water. Domestic surface water rights (ditches or pipelines), that do not have augmentation or sources of water replacement, are discouraged in over-appropriated basins. To do so would place the rights of existing water users on a stream system in competition with new housing developments that need a reliable source of water to meet their daily household needs. For the most part, only small residential and livestock wells are exempt from water rights administration that meet strict criteria set forth by the legislature and are allowed to be drilled without providing for protection to senior water rights.
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