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Colorado Determination of Nontributary Groundwater Status (19-CO-i)

The Colorado Division of Water Resources has developed procedures concerning petitions to the State Engineer to make determinations of nontributary groundwater status in the case of applications for well permits issued pursuant to C.R.S. 37-90-137(4) in Colorado Division of Water Resources Policy 2010-4.


In Colorado, groundwater is presumed to be “tributary” or hydraulically connected to surface water, which requires water right administration within the prior appropriation system. Colorado Division of Water Resources Policy 2010-4. If the State Engineer determines the water to be tributary, a party applying for a well permit must demonstrate that all depletions will be replaced so as not to injure senior water rights. Colorado Division of Water Resources Policy 2010-4. However, if the State Engineer determines the water to be nontributary, the water is not administered within the prior appropriation system and the party will not have to replace depletions. Colorado Division of Water Resources Policy 2010-4. C.R.S. 37-90-103(10.5) defines “nontributary” to mean “groundwater located outside the boundaries of any designated groundwater basins in existence on January 1, 1985, the withdrawal of which will not, within one hundred years of continuous withdrawal deplete the flow of a natural stream, including a natural stream as defined in C.R.S. 37-82-101(2) and C.R.S. 37-92-102(1)(b), at an annual rate greater than one-tenth of one percent of the annual rate of withdrawal. Colorado Division of Water Resources Policy 2010-4.


Determination of Nontributary Groundwater Status Process

19-CO-i.1 – Petition for a Determination of Nontributary Ground Water and Associated Documents

An applicant (developer) seeking a nontributary determination from the State Engineer must file a letter of petition and accompanying professional report. The letter of petition must include:

  • A complete well permit application demonstrating land ownership or consent of the landowner;
  • Information sufficient to demonstrate, through analytic or numeric modeling, that the groundwater in a certain formation underlying the land that is the subject of the application meets nontributary standards. Instead of groundwater modeling, the party may provide geologic, hydrologic, and other information sufficient to demonstrate that the groundwater is hydraulically disconnected from all surface streams such that there will be no depletions to any surface stream as a result of the pumping; and
  • The party’s determination of the saturated thickness of the water yielding formation materials and specific yield of the saturated zones of those materials.

Colorado Division of Water Resources Policy 2010-4; C.R.S. 37-90-137(7).

19-CO-i.2 – File Notice of Petition

Concurrent with the applicant (developer)’s submission of the Petition for a Determination of Nontributary Ground Water to the State Engineer, the party must file a Notice of Petition. The notice must be sent to all parties on the SWSP Notification List, Produced Nontributary Ground Water Notification List, or other notification lists developed by the State Engineer for the water division in which the subject groundwater is located. Additionally, the party must publish the notice once a week for two consecutive weeks (14 days) as a legal notice in the primary newspaper of general circulation in the affected watersheds. The notice must include:

  • A description of the formations;
  • A legal description of the geographically delineated area in which the nontributary determination is requested; and
  • The requirements for submitting responses to the petition.

Colorado Division of Water Resources Policy 2010-4.

19-CO-i.3 – Submit Comments or Request Hearing on Petition

The State Engineer allows 30 days after the applicant (developer) files a notice of petition or after which the petition is published (whichever is later) for any person to respond to the petition. A person must respond to the petition in writing through either submitting comments on the petition or requesting a hearing on the petition. The person must state the basis for the request in enough detail to allow the State Engineer to determine whether a hearing is appropriate prior to an Initial Determination. Colorado Division of Water Resources Policy 2010-4.

19-CO-i.4 – Is the Petition Referred for a Hearing?

The State Engineer may determine the matter requires a hearing after reviewing a request for a hearing by any person who filed a request for hearing, the applicant (developer) or the staff of the State Engineer (DWR).

19-CO-i.5 – Publish Notice of Hearing (if applicable)

The applicant (developer) for a water well permit must provide notice of the hearing to any person who responded to the petition. Colorado Division of Water Resources Policy 2010-4.

19-CO-i.6 – Hold Public Hearing (if applicable)

The State Engineer will conduct a hearing on the petition or submit the matter to a designated hearing officer at the State Engineer’s discretion. The hearing must be conducted pursuant to the Division of Water Resources Procedural Regulations (2 C.C.R. 402-5) and any applicable provisions of the Colorado Administrative Procedures Act. For purposes of the hearing, the applicant (developer) is considered the party requesting the hearing and bears the burden of proof. Any person who submits a written response to the petition may participate in the hearing. Colorado Division of Water Resources Policy 2010-4.

19-CO-i.7 – Evaluate Petition and Written Comments

If the matter is not referred for a hearing, the DWR will evaluate the petition and the written comments submitted on the petition to formulate an Initial Determination on whether the groundwater is nontributary. Historically, the State Engineer has imposed a strict requirement that the applicant (developer) demonstrate the groundwater at issue meets the objective standard set forth in the definition of “nontributary” groundwater. Colorado Division of Water Resources Policy 2010-4.

19-CO-i.8 – Initial Determination

The staff of the State Engineer (DWR) will produce an Initial Determination on whether the groundwater is nontributary based on the evaluation of the petition and the written comments. Colorado Division of Water Resources Policy 2010-4.

19-CO-i.9 - Provide Copy of Initial Determination to Interested Parties

The staff of the State Engineer (DWR) must provide a copy of the Initial Determination to the applicant (developer), any person who submitted written comments, and any person who requested a copy of the Initial Determination. Colorado Division of Water Resources Policy 2010-4.

19-CO-i.10 to 19-CO-i.11 – Does anyone object to the Initial Determination?

If no person objects to the Initial Determination within thirty (30) days, the staff of the State Engineer (DWR) submits its Initial determination to the State Engineer for review and certification as a Final Decision. If any person objects to the Initial Determination or the State Engineer determines a hearing is appropriate, the matter will be set for hearing in front of the State Engineer or a designated hearing officer at the State Engineer’s discretion. Colorado Division of Water Resources Policy 2010-4.

The applicant (developer) must provide notice of the hearing to any person who responded to the petition. Colorado Division of Water Resources Policy 2010-4.

19-CO-i.12 – Hold Public Hearing (if applicable)

The hearing must be conducted pursuant to the Division of Water Resources Procedural Regulations (2 C.C.R. 402-5) and any applicable provisions of the Colorado Administrative Procedures Act. For purposes of the hearing, the applicant(developer) is considered the party requesting the hearing and bears the burden of proof. Any person who submits a written response to the petition may participate in the hearing. The State Engineer may consider the Initial Determination of the staff of the State Engineer (DWR) as evidence, but the State Engineer or hearing officer will make a determination based upon the evidence presented at the hearing. Colorado Division of Water Resources Policy 2010-4.

19-CO-i.13 – Final Decision

If no one objects to the Initial Determination and the State Engineer does not hold a hearing, the Initial Determination becomes the Final Decision of the State Engineer. If the State Engineer holds a hearing, the Final Decision will be based on the evidence presented at the hearing. The State Engineer may use the Final Decision to evaluate a well permit application submitted under C.R.S. 37-90-137(10). Colorado Division of Water Resources Policy 2010-4.




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