RAPID/Roadmap/19-CO-f

< RAPID‎ | Roadmap
Jump to: navigation, search

RAPID

Regulatory and Permitting Information Desktop Toolkit

Colorado Substitute Water Supply Plan (19-CO-f)

The State Engineer in the Colorado Division of Water Resources oversees the approval of Substitute Water Supply Plans (SWSP) under C.R.S. 37-92-308 - Substitute Water Supply Plans. SWSPs provide 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 for augmentation or when the depletion from the water use will be temporary, limited to a duration of less than 5 years. C.R.S. 37-92-308 - Substitute Water Supply Plans; Colorado Policy 2003-2 - Implementation of Section 37-92-308, Regarding Substitute Water Supply Plans.


A developer may request approval for an SWSP through the State Engineer when the developer has submitted an application for approval of a plan for augmentation, or change of water right with a water court, and the court has yet to issue a decree. C.R.S. 37-92-308 - Substitute Water Supply Plans. The State Engineer may approve the temporary operation of a plan for augmentation, or change of water right, if the developer meets certain conditions pursuant to C.R.S. 37-92-308(4)(a) (Paragraph 4 Plans). Synopsis of Colorado Water Law, at p.22.


In addition, the State Engineer may grant a temporary change in water right or plan for augmentation (out-of-priority diversions) even if the developer has not submitted an application for approval for the plan or change in water right with the water court. However, the depletions associated with the water use plan or change must not exceed five years and must meet certain conditions pursuant to C.R.S. 37-92-308(5)(a) (Paragraph 5 Plans).


A “change of water right” means any change from what was the decreed and/or historic practice. For a full definition, see CRS 37-92-103(5). A “plan for augmentation” means a detailed program, either temporary or permanent, to increase the supply of water available for beneficial use to allow the person diverting water out of priority a way to replace those out of priority depletions. The plan would allow an out-of-priority water right to continue to divert by providing replacement water to senior water rights for that diversion. 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.

Note: A developer may renew a Paragraph 5 Plan on an annual basis, but not for more than five years. C.R.S. 37-92-308(5)(a). For instance, the developer may apply for a Paragraph 5 Plan during the construction phase of a project, i.e. road construction using the water for dust suppression. Synopsis of Colorado Water Law, at p.22.


Substitute Water Supply Plan Process

19-CO-f.1 – Request for Approval of Substitute Water Supply Plan (SWSP)

In order to obtain a temporary approval of a plan for augmentation or change in water right, a developer must file a Request for Approval of a Substitute Water Supply Plan with the State Engineer. C.R.S. 37-92-308(4)(a)(I), (5)(A)(I), (10).

The water user may need to consult with a professional engineer to address technical and engineering issues or a water attorney to address legal issues in order to complete the request. Colorado Policy 2003-2 - Implementation of Section 37-92-308, Regarding Substitute Water Supply Plans, at p.4. The Request for Approval of a Substitute Water Supply Plan must include:

  • A statement regarding the justification and need (cite the subsection of CRS 39-92-308 under which the request is being made);
  • Proof of Notice as required by CRS 39-92-308(5)(a)(II) and (7);
  • A narrative description summarizing the water resource aspects of the proposed or existing operation, including water usage and consumption and a proposed plan for replacing out-of-priority depletion or for change of a water right;
  • An affidavit of ownership or a consent agreement to utilize an existing water right. If leased water will be used, a copy of the agreement between the applicant (developer) and the lessor must also be submitted;
  • An engineering report for the Substitute Water Supply Plan, which includes all pertinent information regarding the replacement water and its water quality, historical and proposed consumptive uses, return flows, diversion records, aerial photographs to document historical use, well permit numbers, location maps, transit losses and the time, location, and amount of stream depletion; and
  • A proposed monthly accounting form for the substitute water supply plan that includes all diversions, stream depletion, and replacement water deliveries provided to both the water commissioner and division engineer.

Colorado Attachment to Policy 2003-2, General Guidelines for Substitute Water Supply Plans Submitted to the State Engineer; Colorado Policy 2003-2 - Implementation of Section 37-92-308, Regarding Substitute Water Supply Plans, at p.4.

19-CO-f.2 – Provide Notice of Request for Approval of SWSP

The applicant (developer) must provide written notice of the Request for Approval of SWSP by first-class mail or electronic mail. C.R.S. 37-92-308(4)(a)(II), 5(a)(II).

Paragraph 4 Plans

Where the request is for the temporary operation of a plan of augmentation or change of water right that the applicant (developer) filed with the water court, but for which the court has not entered a decree, the applicant (developer) must provide notice to all parties who have filed a statement of opposition to the plan in water court, or if the deadline for filing a statement of opposition has not passed, all parties who have subscribed to the Substitute Water Supply Plan Notification List for the water division in which the proposed plan is located. C.R.S. 37-92-308(4)(a)(II). The State Engineer maintains the Substitute Water Supply Plan Notification List. The notification list allows interested parties to subscribe each year for all notices within a specific water division. Synopsis of Colorado Water Law, at p.22.

Paragraph 5 Plans

Where the request if for new water use plans involving out-of-priority diversions or a change of water right, where the applicant (developer) did not file an application for approval of a plan for augmentation or a change of water right with the water court (water uses limited to less than five years), the applicant (developer) must provide written notice of the request to all parties who have subscribed to the Substitute Water Supply Plan Notification List for the water division in which the proposed plan is located. C.R.S. 37-92-308(5)(a)(II).

The applicant (developer) must file proof of the notice of request with the State Engineer. C.R.S. 37-92-308(4)(a)(II), 5(a)(II).

19-CO-f.3 – Comment on SWSP

Paragraph 4 Plans

Where the SWSP pertains to a plan of augmentation or a change of water right that the applicant (developer)filed with the water court, parties receiving notice have thirty (30) days after the applicant (developer) mails the notice to file comments on the SWSP. C.R.S. 37-92-308(4)(a)(III).

Paragraph 5 Plans

Where the SWSP pertains to a new water use plan involving out-of-priority diversions or where the depletion from the diversion will last less than five years or where no augmentation plan has been filed for a change of water right, the parties receiving notice have thirty-five (35) days the applicant (developer) mails the notice to file comments on the SWSP. C.R.S. 37-92-308(5)(a)(III). Comments on the SWSP, regarding applications both pending and not submitted to the water court, must include:

  • Any claim of injury;
  • Any terms and conditions that should be imposed upon the plan to prevent injury to an opposer’s water rights or decreed conditional water rights; and
  • Any other information an opposer wants the State Engineer to consider when reviewing the SWSP request.

C.R.S. 37-92-308 (4)(a)(III), (5)(a)(III).

19-CO-f.4 – Review SWSP and Comments on SWSP

The State Engineer must review the SWSP and review and consider the comments on the SWSP. C.R.S. 37-92-308 (4)(a)(IV)(A), (5)(a)(IV)(A).

19-CO-f.5 - Request Additional Information (As Necessary)

The State Engineer will request additional information as necessary to make a determination on the SWSP.

19-CO-f.6 – Hold Hearings (As Necessary)

The State Engineer, in making the SWSP determination, may hold hearings or formal proceedings as the State Engineer finds necessary to address the issues raised in the SWSP. C.R.S. 37-92-308 (4)(a)(IV)(C), (5)(a)(IV)(C).

19-CO-f.7 to 19-CO-f.9 – Does the State Engineer Approve the SWSP?

The State Engineer determines whether:

  • The operation and administration of the SWSP will replace all out-of-priority depletions in time, location, and amount;
  • Will otherwise prevent injury to other water rights and decreed conditional rights, including water quality and continuity to meet the requirements of use to which the senior appropriation has normally been put;
  • Will not impair compliance with any interstate compacts;
  • Stream depletion from out of priority diversions will not occur more than five years after diversions begin or where the applicant (developer) has sought water court approval of a plan for augmentation or a change of water right for some or all of the same structures or water rights.

C.R.S. 37-92-308 (4)(a)(IV)(A), 4(b)(I), (5)(a)(IV)(A), 5(b)(I).

19-CO-f.10 to 19-CO-f.12 – Is a New Well Needed?

If a replacement plan (augmentation plan) requires a new well to replace the out-of-priority depletion, the State Engineer will not approve the plan through a SWSP until the developer has applied for the well permit. General Guidelines for Substitute Supply Plans, at p. 5.

In addition, after the developer receives a 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 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. For more information, see: Water Well Permit:
19-CO-d

The State Engineer may place any terms and conditions on the SWSP necessary to ensure the SWSP meets the requirements above. C.R.S. 37-92-308 (4)(a)(IV)(C), (5)(a)(IV)(C).

If the State Engineer determines the requirements are met, the State Engineer issues an approval of the SWSP. If the State Engineer determines the requirements are not met, the State Engineer issues a denial of the SWSP. C.R.S. 37-92-308 (4)(c), (5)(c). Approval or denial of the SWSP does not create any presumptions, shift the burden of proof, or serve as a defense in any legal action that an interested party may initiate concerning the SWSP. C.R.S. 37-92-308 (4)(c), (5)(c).

19-CO-f.13 – Serve Copy of Decision

After the State Engineer makes the decision on the Request for Approval of the Substitute Water Supply Plan, the State Engineer must serve a copy of the decision on all parties to the application. C.R.S. 37-92-308 (4)(c), (5)(c).

19-CO-f.14— Appeal Decision (If Applicable)

Paragraph 4 Plans

Any interested party may appeal a decision made by the State Engineer concerning a substitute water supply plan pursuant to C.R.S. 37-92-308 (4) to the water judge of the applicable water division within thirty (30) days. The water court will consolidate the appeal with the application for approval of the plan for augmentation. C.R.S. 37-92-308 (4)(c).

Paragraph 5 Plans

Any interested party may appeal a decision made by the State Engineer concerning a substitute water supply plan pursuant to C.R.S. 37-92-308 (5) to the water judge in the applicable water division within thirty (30) days. The water judge will hear the appeal on an expedited basis. C.R.S. 37-92-308 (5)(c).

The water judge will conduct appeals in accordance with C.R.S. 37-92-304, Proceedings by the water judge and C.R.S 37-92-305, Standards with respect to rulings of the referee and decisions of the water judge.




Contact Information

| Add a Contact




Print PDF



Edit Colorado Division of Water Resources
PE, Water Access, Water Rights, Water Well Permitting, and Substitute Water Supply Planning Contact
x8239

Visit Website