Water Rights, Well Permits, and Your Responsibilities

The sad fact is that our water supply is decreasing and, according to data compiled by the World Health Organization, the earth will face mass water shortages by 2050.  Further, it is predicted that the southwestern United States will begin to face greater water shortages as early as 2025. Some assume that water will be here forever, but that is just not the case.  There are some things we can do now that will help preserve our water supply, such as begin to use conservation practices and water-efficient products.  Further, we must all be good stewards of the resources we have and it is incumbent upon each of us to understand the type of water rights or the type of well permits we have, and to use our water carefully and justly. As has become the mantra around the state, “use only what you need.”  For more information on conservation, you may visit www.cwcb.state.co.us.  For more information on water conservation products, you may visit www.epa.gov/watersense.

The purpose of this article is to help you understand some basics of Colorado water law, well permits and to provide you with some questions to ask so that you may comply with the law and understand the type of well you may have. To put it bluntly, you should care about the type of well permit you have because there is a scarcity of water in the Rocky Mountains and the system that we have was created in order that we may all continue to have water for as long as possible.

In Colorado, one of our biggest challenges is that much of our system is “over-appropriated.”  This means that we have more court decreed water rights than can be satisfied by the physical supply of water.  The Colorado Constitution says that the right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied.  What happens if all the water is appropriated or even over-appropriated? And, what happens in times of extreme draught?  These questions are rhetorical; however, the systems of water rights were created to address these challenges.

In the United States, there is no national water rights system.  Each state determines water rights, and there are essentially two systems or ways of determining water rights. In the eastern U.S. where water is more plentiful, the primary system is known as Riparian Rights.  In the more arid western U.S., the system is known as Prior Appropriation.  Under the Riparian system, whoever owns the land on the bank has the right to use the water.  Under the Appropriation system, the first person to divert or control water for a beneficial use has a priority claim that must be satisfied before another person may divert or control the water.  In short, it can be said that he who was first in time is first in right.  Unlike the Riparian system, this right is independent of land ownership.  The right to use water is based on the priority of the appropriation for a specific amount, location and use of water.  Further, appropriation rights are subject to abandonment. It is important to note that all water rights must be determined by the Colorado water court.  For more information on the Riparian or Prior Appropriation doctrines, you may go to www.waterinfo.org or http://library.findlaw.com/1999/Jan/1/241492.html.

You may be asking yourself how well use affects water rights.  The answer is that ground water (pumped from wells) and surface water (streams) interact.  In fact, ground water and surface water are connected through small openings between grains of sand, gravel and rocks.  These small openings allow water to move to and from streams.

Based on the Appropriation doctrine, Colorado has created a system for providing individual users with well permits in order to provide adequate water for all citizens who do not live within an area serviced by a public source of water. Except in limited cases, if you live in a municipality or water district, then you will not be able to obtain a well permit.  With seven division offices, the Colorado Division of Water Resources, lead by the State Engineer, issues well permits, administers water rights, monitors stream flow and water uses, inspects dams, and represents Colorado in interstate water compact proceedings.  With few exceptions, every well that diverts ground water must have a permit.  According to the State Engineer’s office, there are over 10,000 applications filed for new permits every year and they are granted in accordance with strict statutory guidelines.  If you live in one of the eight designated ground water basins, mostly in the eastern plains of Colorado, then you come under the jurisdiction of the Colorado Ground Water Commission.  It is beyond the scope of this article to discuss permitting in the eight ground water basins.

Water Commissioners are employed the State Engineer’s office to be out in the field allocating water, issuing shut down orders, collecting water use and diversion data, and enforcing the decrees and laws of the State of Colorado.  The task of the Division of Water is also to determine the availability of water while analyzing for potential injury to other existing water rights.  There is a statewide satellite-linked monitoring system that records stream flows. All of this is in place because of a shortage of water.

In Colorado, there are two classes of wells:  Exempt and Non-Exempt.  “Exempt wells” are exempt from water rights administration, and you obtain such a permit as a matter of right if you meet certain criteria.  “Non-Exempt wells” are subject to the priority system and include all types of wells that are not specifically defined in the “exempt” category.  No matter what type of well you are creating, you must have a non-evaporative wastewater disposal system (for example, a septic tank and leach field) that returns the water used from the well to the same stream drainage system in which the well is located.

There are two types of exempt wells that may be created to service a residence, i.e., a household well and a domestic well. If you have a household well, you may not water outside the home and you may not provide water to livestock. Household wells are permitted for lots in subdivisions created prior to June 1, 1972, or if the parcel was created by exemption to the subdivision laws by local county planning authorities.  If you want to provide water outside your home to animals or gardens, then you either have to have an augmentation plan created or haul in water.

If you have a domestic well, you may irrigate one acre or less of lawn and garden, and provide water for individuals, domestic animals and livestock.  Also, domestic wells may serve up to three single family dwellings.  In order to obtain a domestic well, you must have a tract of land that is 35 acres or more, where the well will be the only well on the tract.  If you live in one of the limited areas of the state that is not “over-appropriated” or the well will produce from a deeper source where pumping will have a minimal impact on surface water rights, then you may be able to obtain a domestic well permit.  Neither household wells nor domestic wells are allowed for commercial use.

There is one type of a commercial exempt well.  This type of well is for a small business on land created pursuant to a subdivision exemption or created prior to June 1, 1972. Even then, the permit is limited to small commercial businesses where the usage will be less than 108,600 gallons a year.  The well must be metered and used only for drinking and sanitation.  No outside use is allowed.

If you happen to have an unregistered well, you may want to consider obtaining a permit for it.  While the State does not require it, you may obtain a permit for any unregistered well that was put to beneficial use prior to May 8, 1972.  These types of wells may serve up to three homes, irrigate lawns and gardens, and allow for watering domestic animals and livestock.  You do not have to obtain a permit unless and until you need to redrill the well.  However, there are some benefits to obtaining a permit, such as shortening the time it takes to obtain a permit if you need to redrill and it could make it easier to sell the property because some lenders and/or buyers want the state’s assurance that the well is usable.

The last category of exempt wells is replacement wells. You must obtain a permit if you replace or deepen an existing well. As was mentioned previously, if your well or proposed well does not fit into one of the definitions of exempt wells, then you must have a non-exempt well permit.

If you wish to obtain a non-exempt well permit, you must replace any out-of-priority stream depletion in time, place, amount and quality by having what is known as “augmentation water” available.  You must have an augmentation plan created and have that plan approved by the water court.  In most cases, in order to properly create an augmentation plan, you would need to hire a water resource engineer and/or a water attorney.

Some non-exempt wells include irrigation, commercial, municipal, recovery, geothermal, and industrial wells.  It is beyond the scope of this article to cover augmentation plans and these types of wells.  However, because many people wish to create ponds, it is important to understand that these may be considered non-exempt wells.

If you wish to build a pond, you will likely need a non-exempt well permit and you must comply with all requirements for creating a new well.  In an over-appropriated area, you will also need an augmentation plan.

Below are some important questions to ask if you are buying or preparing to sell a property serviced by a well:

  1. How old is the well?
  2. Is it registered? Any well created after May 8, 1972, should be registered.
  3. What is the well permit number?  If you have the well permit number or the legal description of the property and owner’s name, you may obtain a copy of the file maintained by the State Engineer’s Office.
  4. What is the depth of the well?
  5. What is the well’s pumping rate?  You should always have a well pump and water quality test performed by a qualified professional.  You will want a recommendation, especially if the well is a low-yield well, concerning the possible need for storage tanks or a controlled pumping system.  Generally speaking, you need a well that generates 75 gallons per person per day.
  6. Is the well actually located within the parcel you are buying?
  7. Is the well easily accessible for repairs and maintenance?
  8. Does it appear sanitary?
  9. Is the ground around the well head sloped for drainage of surface water away from the well head?
  10. Is the well casing above the ground and does it appear to have a water-tight seal?
  11. Is the well at least 100 feet away from any known contaminants and at least 50 feet away from the septic system or sewer lines?
  12. Are there any open or unplugged abandoned wells nearby?

When you buy a property serviced by a well, the well permit must be transferred to you at closing. Also, if you buy a property serviced by a central water supply system, you should inquire about water quality, reliability and cost.  The long and short of it is if you use a well for a purpose not permitted, then you run the risk of breaking the law and receiving a shut down order. And not preserving the natural resource?

As the Colorado Real Estate Commission cautions, water rights can be very technical and complex.  Obtain the counsel of appropriate experts such as attorneys or brokers who specialize in water rights, water engineers and well drillers.  Valuable general and specific information can be obtained from the Office of the State Engineer, Division of Water Resources, Colorado Department of Natural Resources, and the Water Division Office in the county where the property is located.  The State Engineer’s Office has a very useful Guide to Colorado Water Rights, Well Permits, and Administration at www.water.state.co.us.  Some of the information provided in this article was gleaned from the Guide.

If you are like me, you love living in the Colorado mountains and you want to see it remain pristine for as long as possible.  Understanding Colorado’s water issues and conserving water now will go a long way to achieving this goal.

Jon Terry

Alaris Properties, LLC

(303) 907-7668

Jon@AlarisProperties.com


 
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