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Regulatory and Permitting Information Desktop Toolkit

Colorado New Water Right Process for Surface Water and Tributary Groundwater (19-CO-e)

Developers seeking a new water right or who want to buy, lease, or transfer previously decreed water to appropriate surface water and tributary groundwater should determine whether they must initiate the Water Right Adjudication Process (See Flowchart 19-CO-g) or may procure (non-municipal) water for a temporary use through a Substitute Water Supply Plan (See Flowchart 19-CO-f). Note, a developer may obtain water from a local municipality through a tap fee. For more information on municipal or government suppliers, see:


Water Access and Water Rights Issues Overview:
19-CO-a


Most surface water and tributary groundwater in Colorado is already appropriated or decreed especially in the Platte, Arkansas and the Rio Grande watersheds. Citizen’s Guide to Colorado Water Law, at p. 13; A Decade of Colorado Water Supreme Court Water Decisions: 1996-2006. Therefore, obtaining a new absolute or conditional water right (storage, surface, or groundwater) is often times a resource and time intensive process. Citizen’s Guide to Colorado Water Law, at p. 13. As an alternative, a developer may buy or have an existing senior water right transferred (leased, loaned, rented, etc.), retaining its priority date. CRS 38-30-102, Water Rights Conveyed as Real Estate.

Often times, buying, or transferring a consumptive water right requires a change in the historic/decreed use of the water. CRS 37-92-103(5), Definitions. As a result, a developer may need to apply for a Change in Water Right. CRS 37-92-302, Applications of Water Rights or Changes of Such Rights- Plans for Augmentation. In addition, many times as a condition of a consumptive water use, a water user must replace the depletion (water consumed and not returned back to the stream or aquifer). Colorado statutes provide for two basic types of water replacement plans: Plans for Augmentation and Substitute Water Supply Plans (SWSP). CRS 37-92-308, Substitute Water Supply Plans; CRS 37-92-302, Applications of Water Rights or Changes of Such Rights- Plans for Augmentation.


A Plan for Augmentation is a water court approved plan designed to protect senior water rights, while allowing junior water rights to divert water out-of-priority. CRS 37-92-103(9), Definitions. This longer-term plan allows an out-of-priority water right to continue to divert water by providing replacement water to senior water rights for that diversion. Synopsis of Colorado Water Law, at p.21. A SWSP is very similar to Plans for Augmentation. A developer would also use a SWSP to quantify river depletions and injury to senior water rights holders for new users of water and provide for replacement water to offset this injury. The fundamental difference between a Plan for Augmentation and a SWSP is that CRS 37-92-308, Substitute Water Supply Plans gives the State Engineer the authority to approve temporary operation of a Plan for Augmentation, through a SWSP. In addition, CRS37-92-308, Substitute Water Supply Plans gives the State Engineer the authority to approve a temporary Change of Water Right, through a SWSP. Therefore, a SWSP provides a developer a mechanism to replace out-of-priority depletions on an interim basis, circumventing the time-consuming water court adjudication process. An SWSP also allows temporary changes of use and in the case of permanent changes, the protection of other water rights during litigation involving water change cases and augmentation plans. Colorado Policy 2003-2 - Implementation of Section 37-92-308, Regarding Substitute Water Supply Plans.

Developers seeking a new water right to appropriate surface water and tributary groundwater should consult this page to determine whether the developer must initiate the Water Right Adjudication Process (See Flowchart 19-CO-g) or may procure water for a temporary use without an adjudicated water right or augmentation plan via a SWSP.


New Water Right Process for Surface Water and Tributary Groundwater Process

19-CO-e.1 – Will There Be Any Consumptive Uses of Water?

If the project will not require any consumptive uses of water, the developer must initiate the Water Right Adjudication Process (See Flowchart 19-CO-g). For more information, see:

Colorado Water Right Adjudication Process:
19-CO-g

A “consumptive use” is the amount of water that is lost to the stream system. A “non-consumptive use” is any use that does not reduce the quantity of water available to the stream system. Colorado Department of Natural Resources Guide to Colorado Well Permits, Water Rights, and Water Administration.


If the project will require any consumptive uses of water, the developer should continue with this flowchart.

Hydropower

The State Engineer may consider hydropower generation a consumptive water use, if the project requires the construction of a reservoir to hold water or a canal feeds the hydropower plant or pumped storage hydroelectric facility due to resulting evaporation or absorption. Colorado Small Hydropower Handbook, at p.10. The State Engineer may also consider a hydropower project a consumptive water use for most surface diversions through a canal or other means. Thereby, the developer of a pumped storage facility, for example, may gain temporary approval of a plan for augmentation or a change of water right through a Substitute Water Supply Plan (SWSP) issued by the State Engineer. For more information, see:

Substitute Water Supply Plan:
19-CO-f

19-CO-e.2 to 19-CO-e.3 — Is a New Well Needed?

After the developer calculates the project’s water need and locates the appropriate source of water supply the developer should determine whether the project requires a new well. If the proposed project requires a new well, the developer should initiate the Water Well Permit process (See Flowchart 19-CO-d). C.R.S. 37-90-137, Colorado Code of Regulations 2 C.C.R. 402-7, Non-tributary Ground Water Rules. For more information, see: Water Well Permit:
19-CO-d

19-CO-e.4 — Will the Water Use Require a Water Replacement Plan?

Oftentimes a new consumptive water right or change to a previously decreed consumptive water right requires a water user to replace the depletion (water consumed and not returned back to the stream or aquifer). Depending on the water source location, a developer may need to implement a water replacement plan. A replacement plan is defined as a ”source of water that a junior or un-decreed well user makes available to a senior appropriator to offset any injury caused to the senior by the junior’s or un-decreed well user’s out-of-priority depletions.” Simpson v. Bijou Irrigation Co., 69 P.3d 50 (Colo. 2003). Pending on the duration of use, a developer may implement a replacement plan through either a Plan for Augmentation or a Substitute Waters Supply Plan (SWSP). CRS37-92-308, Substitute Water Supply Plans; CRS 37-92-302, Applications of Water Rights or Changes of Such Rights- Plans for Augmentation. Replacement plans (Augmentation Plans) are often required:

  • For diversion of water at times when there is no unappropriated water available; and
  • In all watersheds that are over-appropriated during at least part of the year.

Citizen’s Guide to Colorado Water Law, at p. 18.

If the developer must replace the water use depletion, the developer should continue to 19-CO-e.5. If the developer does not need a replacement plan, the developer should go to 19-CO-e.16.

19-CO-e.5 — Locate Source of Replacement Water for Purchase or Lease to Replace Calculated Out-of Priority Depletions

The developer with the assistance of a water consultant/engineer must locate a source of replacement water for purchase, lease, or transfer to replace any out-of-priority depletion and not injure any vested water rights. See, Synopsis of Colorado Water Law, at p.20-22; Guide to Colorado Well Permits, Water Rights, and Water Administration, at p.12-13; The City of Colorado Springs v. Yust, 126 Colo., 289 (1951). The replacement water must meet the needs of senior water rights holder at the time, place, quantity and suitable quality they would enjoy absent the out-of-priority diversions. CRS 37-92-308(5)(a)(IV); Citizen’s Guide to Colorado Water Law, at p.16; Colorado Attachment to Policy 2003-2, General Guidelines for Substitute Water Supply Plans Submitted to the State Engineer. Replacement water may come from any legally available source provided by a variety of means. Citizen’s Guide to Colorado Water Law, at p.16

19-CO-e.6 to 19-CO-e.8 — Will the Replacement Plan Require a New Well?

A water use replacement plan may require a new well to replace the out-of-priority depletions. If a new well is required, the developer should initiate the Water Well Permit process (19-CO-d). If a replacement plan requires a well permit, the State Engineer will not approve the plan through a SWSP (if the developer qualifies for a SWSP) until the developer has applied for the well permit. General Guidelines for Substitute Supply Plans, at p.5. For more information, see: Water Well Permit:
19-CO-d
After the developer receives the Water Well Permit from the State Engineer, the developer should begin operating the well. A developer looking to apply for approval of a Change of Water Right or Plan for Augmentation (replacement plan) through a SWSP (if the developer qualifies for a SWSP) must provide evidence to the State Engineer that the developer has put the well to beneficial use. General Guidelines for Substitute Supply Plans, at p.6.

19-CO-e.9 – 19-CO-e.10 – Is the Replacement Water Use Temporary (depletion < 5 years)?

The developer may initiate the Substitute Water Supply Plan Process (See Flowchart 19-CO-f), as a means to replace out-of-priority depletion on a temporary basis. The State Engineer has the authority to approve temporary operation of a Plan for Augmentation or Change of Water Right under certain conditions. CRS 37-92-308. This interim approval, a SWSP, provides water users a way to replace out-of-priority water depletion on a temporary basis when the water user is completing the water right adjudication process for a Change of Use or Plan of Augmentation (replacement plan) and when the water use will be temporary (depletion lasting no more than five years). CRS 37-92-308 (5)(a), 5(b)(I). If the water depletion is associated with the Plan for Augmentation (replacement plan) does not exceed 5 years, the developer should proceed to 19-CO-19 and refer to Substitute Water Supply Plan:
19-CO-f
for more information. If the use of water is not temporary (i.e., depletion will continue beyond five years), the developer with the assistance of a water consultant/engineer must locate a permanent source of replacement water to replace the calculated out-of-priority depletion caused by the water use.

19-CO-e.11 to 19-CO-e.15 — Will the Use of the Replacement Water Require a Change of a Historic/Decreed Water Right?

If the use of the replacement water requires a change of a historic/decreed water right, the developer will need a water consultant/engineer to conduct a historical use analysis of the water right. A change in the historic/decreed use of water means “…a change in the type, place, or time of use, a change in point of diversion, a change from a fixed point to an alternate or supplemental points of diversion, a change in the means of diversion, a change in place of storage, a change from direct application of storage and subsequent application to direct application, a change from a fixed place of storage to alternative places of storage, a change from alternate places of storage to a fixed place of storage or any combination of such changes.” C.R.S. 37-92-103(5), Definitions.

The change of water right will require a water court Change of Water Right decree to allow a different use, different point of diversion, or different place of use, etc. while retaining the senior priority of the original water right. Citizen’s Guide to Colorado Water Law, at p.15. The water consumption under the change is limited to the beneficial historic consumptive use of the original water right. Citizen’s Guide to Colorado Water Law, at p.15. Therefore, the water user (developer) of the changed right may not use more water than that amount of water consumed under the prior right. Citizen’s Guide to Colorado Water Law, at p.15. Colorado water law bases beneficial historic consumptive use on a representative time-period, maintenance of the historic return flow pattern, and other conditions necessary to prevent enlargement of the water right or injury to other water rights. Citizen’s Guide to Colorado Water Law, at p.15.

Because the developer’s water depletions associated with the replacement plan and/or change of water right exceeds five years the developer may not qualify for approval via a SWSP from the State Engineer. CRS 37-92-308 (5)(a), 5(b)(I). Therefore, the developer and the water consultant/engineer must draft a Plan for Augmentation and compile data for a Change of Water Right application (if necessary). The developer then must initiate the Water Right Adjudication Process for water court approval of a Plan for Augmentation and/or a Change of Water Right. Plans for augmentation are defined in CRS 37-92-103(9). Pooling of water resources, exchanges of water, substitute supplies of water, and/or the development of new supplies of water may be means of augmentation. See, Synopsis of Colorado Water Law, at p.21; CRS 37-92-103(9). For more information, see: Initiate Water Right Adjudication Process:
19-CO-g
Note, however that after filing a the applicable Change of Water Right application and/or an application for Approval of Plan for Augmentation a developer may still receive interim approval via a SWSP. CRS 37-92-308 (4)(a). The State Engineer may approve the temporary operation of an application for Approval for Augmentation or Change of Water Right filed with the water court, where the water court has not yet issued a decree. This interim approval, not to exceed three years, by the State Engineer is in the form of a SWSP. CRS 37-92-308 (4)(a), 4(b)(I). For more information, see: Substitute Water Supply Plans:
19-CO-f

19-CO-e.16 to 19-CO-e.18 — Will the Water Use Require a Change in a Historic/Decreed Water Right?

As a new (junior) water user, a developer may lease, buy or transfer an existing decreed (senior) water, retaining its priority date. Buying, leasing, or transferring a consumptive water right may require a change in the historic/decreed use of the water. C.R.S. 37-92-103(5), Definitions. A change in the historic/decreed use of water means “…a change in the type, place, or time of use, a change in point of diversion, a change from a fixed point to an alternate or supplemental points of diversion, a change in the means of diversion, a change in place of storage, a change from direct application of storage and subsequent application to direct application, a change from a fixed place of storage to alternative places of storage, a change from alternate places of storage to a fixed place of storage or any combination of such changes.” C.R.S. 37-92-103(5), Definitions. If a change in water right is required, the water consumption under the change is limited to the beneficial historic consumptive use of the original water right. Citizen’s Guide to Colorado Water Law, at p.15. Therefore, the water user (developer) of the changed right may not use more water than that amount of water consumed under the prior right. Citizen’s Guide to Colorado Water Law, at p.15. Colorado bases beneficial historic consumptive use on a representative time-period, maintenance of the historic return flow pattern, and other conditions necessary to prevent enlargement of the water right or injury to other water rights. Citizen’s Guide to Colorado Water Law, at p.15.

If the water depletions associated with the change of water right does not exceed five years, the developer may qualify for interim approval through an SWSP, not to last longer than 5 years. CRS 37-92-308 (5)(a), 5(b)(I), Substitute Water Supply Plans. The State Engineer’s approval of a change of water right via an SWSP effectively allows the developer to bypass the water court adjudication process. CRS 37-92-308, Substitute Water Supply Plans. For more information, see: Substitute Water Supply Plan:
19-CO-f

Note, however that after filing a the applicable Change of Water Right application a developer may still receive interim approval via a SWSP. CRS 37-92-308 (4)(a). The State Engineer may approve the temporary operation of an application for Change of Water Right filed with the water court, where the water court has not yet issued a decree. The SWSP interim approval by the State Engineer may not exceed three years. CRS 37-92-308 (4)(a), 4(b)(I). For more information, see: Substitute Water Supply Plans:
19-CO-f




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