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Commentary and Analysis Regarding Colorado Law

Do You Feel Well-Protected?

Jeffers Steve 011Many  landowners and small businesses use wells that provide a vital water supply for their property.  Some wells are used for watering livestock, for drinking water inside homes, for irrigation of lawns and gardens, or for drinking and sanitary purposes inside a shop or other business.  People often take for granted their right to use their well, and don’t realize that use may be threatened.  Finding out you don’t have the proper permit or decree after your well goes dry from a nearby construction project, or after the state orders you to shut down the well, may be inconvenient, expensive, and difficult to fix. 

In Colorado, water rights outside the Designated Basins are administered based on “first in time is first in right”, with many of the first rights dating back to the 1860's.  In order to establish the priority of your water right and protect it from new uses, you must have a court decree.  No diversion is allowed from a well unless the owner also has a valid permit from the Division of Water Resources (DWR). If you own a small well that is important to your home or business, you should make sure you have a valid well permit and your use falls within the permit limits.  If you don’t have a well permit, or if your use is out of compliance, the State may shut down your well.  For questions about administration of wells or questions about your individual well permit, you can call DWR’s groundwater information desk.  However, before talking with them, you may want to consult with an experienced water attorney.

Most stream systems in Colorado are over-appropriated, and junior water rights may be shut off when needed to make water available for senior users calling for water.  Junior water rights may only keep diverting during that call if their diversions are covered by a decreed augmentation plan or the use qualifies for one of the statutory exemptions.  That includes wells.  CRS Section 37-92-602 allows the State Engineer to issue well permits for diversions from 15 gallons per minute (gpm) up to 50 gpm for specific limited uses that are deemed by the legislature not to cause injury to other water rights, and as a result do not require an augmentation plan.

Even if your current use is allowed by your permit or decree for the well, your well could be shut down if the diversion rate or type of use exceeds the exempt limits and the well is not covered by a decreed augmentation plan. For some well owners, the existing uses are too important to give up, and an augmentation plan is their only choice.  If they are lucky, they may be able to join an existing plan.  Other well owners may need to develop their own augmentation plan, typically at greater expense.  

If your well is not included in an augmentation plan, but you can alter your use or alter your permit to fit one of the exemptions, that may be a more cost-effective solution for preserving your water supply. DWR provides a process to allow well owners to reduce their water rights to the exempt levels and obtain a new exempt permit.  For example, the owner could agree to limit the number of homes, irrigated acres or other uses to the exempt levels. Caution should be used in following that process, because DWR staff typically asks the well owner to abandon their full decreed water right in exchange for the exempt permit.  Full abandonment is not necessary in most cases, and well owners should preserve all exempt types of use, and their decreed priority.  The original priority date is critical to protect the well and water right from future threats if you ever have a conflict with a new or junior user.

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515 Kimbark Street, Second Floor
Longmont, CO 80502
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363 Centennial Parkway, Suite 110
Louisville, CO 80027
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