2 Colo. Code Regs. § 410-1-5

Current through Register Vol. 48, No. 1, January 10, 2025

Rule 2 CCR 410-1-5 - APPROPRIATION AND ALLOCATION OF DESIGNATED GROUND WATER

5.1 Applicability

5.1.1 Section 37-90-107, C.R.S., provides for the Commission's review and approval of applications to use designated ground water. The availability of designated ground water for Appropriation or Allocation, prevention of unreasonable impairment to the rights of other appropriators, and prevention of unreasonable waste are criteria the Commission is to consider in determining whether to grant or deny an application.

5.1.2 The use of designated ground water requiring a permit pursuant to section 37 90 107, C.R.S., may include use for irrigation, municipal, commercial, industrial, mining, fishery, recreational and all other Beneficial Uses as occur through the use of a well.

5.1.3 The spacing limits, calculations of Appropriations and Allocations, and other limits set forth herein apply to Large Capacity Wells. Certain applications to be considered pursuant to prior court decree may not be subject to this rule but when a conditional decree previously granted by a court becomes absolute by reason of a well being drilled and water put to Beneficial Use, the well becomes fully subject to the Colorado Ground Water Management Act, Title 37, Article 90 and the Commission's rules and policies. For all applications to construct wells or use or deplete any water within the boundaries of a designated basin, the Commission shall first determine the extent to which the water that is the subject of the application is designated ground water and its jurisdiction over such water.

5.1.4 If an application to appropriate designated ground water under section 37-90-107(1), C.R.S., or to allocate designated ground water under section 37-90-107(7), C.R.S., 37-90-111(5), C.R.S., and Rule 5.3 or Rule 5.4 can be given favorable consideration such fact shall be published in accordance with sections 37-90-107(2) and 112, C.R.S.

5.1.5 Applications for well permits pursuant to section 37-90-105, C.R.S., may be granted by the State Engineer without regard to any provisions of these rules.

5.2 Appropriation from all aquifers except Bedrock Aquifers - This rule applies to all aquifers except Bedrock Aquifers. Aquifer boundaries defined here are deemed presumptive upon the Commission and Applicants, except that the Commission, after reviewing any site specific data, may revise an aquifer boundary.

5.2.1 No application for a permit to appropriate designated ground water from an aquifer under Rule 5.2 shall be granted within 1/2 mile of the permitted location of an existing Large Capacity Well producing from the same aquifer unless a Waiver of Claim of Injury is obtained from the owner of such a well or unless the Commission, after a hearing, finds that circumstances in a particular instance allow a permit to be issued without regard to the above limitation, or unless the proposed well will serve an individual residential site and the proposed pumping rate will not exceed fifty gallons per minute.

5.2.2 Northern High Plains Designated Ground Water Basin - Ogallala and White River Aquifers.

5.2.2.1 The areal extent of the Ogallala and White River Aquifers are considered to coincide with the areal extent of the Northern High Plains Designated Basin.

5.2.2.2 All new Appropriations from the Ogallala Aquifer (including the White River) shall be controlled by management criteria that limit the maximum allowable rate of depletion to 40% of the designated ground water in storage within the Saturated Aquifer Thickness (H, as described in Rule 5.2.2.3) over a 100 year period. No new Appropriation that exceeds this allowable rate of depletion, absent an approved Replacement Plan, shall be granted. The amount of designated ground water in storage shall be determined as of the date of acceptance of a complete application.

5.2.2.3 In the evaluation of new permit applications, the following Three Mile Circle formula shall be used in the determination of whether an application shall be granted or denied:

Click to view image

where,

A = Annual Appropriation allowable within the circle being evaluated in acre-feet per year

D = Allowable depletion (expressed as a decimal)

S.Y. = Specific Yield (dimensionless)

R = Radius of circle (miles)

H = Average Saturated Aquifer Thickness within the circle (feet)

t = Time period during which depletion, D, occurs (years)

Pr = Precipitation recharge (inches/yr.)

f = Fraction of Pr that is available for Appropriation in the circle (dimensionless)

Ir = Fraction of A that returns to the aquifer as deep percolation, i.e., irrigation return (dimensionless)

The constants in the above equation are:

D = 0.4, S.Y. = 0.15, R = 3 miles, t = 100 years, f = 0.2 and Ir = 0.15

Use of these constants in the formula above gives:

A = 12.77H + 354.82Pr

Saturated Aquifer Thickness, H, shall be determined by an evaluation of contour maps developed from well completion reports of existing wells as well as other pertinent available water level data. Precipitation recharge, Pr, will be determined from Figure 1 (consisting of Figure 18 of the report "Distribution of Ground Water Recharge," AER66 67 DLR9, Colorado State University, June 1967 by Donald L. Reddell).

5.2.2.4 When the Three Mile Circle includes the White River Formation, located in the shaded area as shown on Figure 2, the value for Specific Yield (S.Y.) in the above formula will be 0.25. The Saturated Aquifer Thickness, H, will be the average net sands thickness in the Three Mile Circle. The annual available Appropriation from within the Three Mile Circle can then be computed as:

A = 21.29H + 354.82Pr

5.2.2.5 The Appropriations to be included in the annual Appropriation allowable within the Three-Mile Circle that is the subject of Rule 5.2.2.3 shall include: the permitted annual Appropriation on all final and conditional permits; the annual requested Appropriations on all applications pending as of the date of acceptance of a complete application; and the amount requested on the application being evaluated.

5.2.2.6 When an application is received within 3 miles of the state line or the boundary of the Northern High Plains Designated Basin, the volume of water in storage, the amount of precipitation recharge and the existing Appropriations shall be calculated in such a way as to only include those amounts within the basin and within Colorado.

5.2.2.7 When an application is received within 3 miles of the administrative line shown in Figure 2, the amount of water in storage shall be determined by adding the amounts of water in storage under the parts of the Three Mile Circle in the net sand area (Rule 5.2.2.4) and the regular sand area (Rule 5.2.2.3).

5.2.2.8 The following sections in Kiowa and Prowers Counties are deemed overappropriated for the Ogallala Aquifer (including Alluvium) and no new Appropriations will be approved absent an approved Replacement Plan in accordance with Rule 5.6 :

Township 21 South, Range 41 West:	Sections 5 through 8, 18;
Township 21 South, Range 42 West:	Sections 1 through 20
Township 21 South, Range 43 West:	Sections 1, 2, 11 through 13;
Township 20 South, Range 42 West:	Sections 7, 8, 17 through 21, and Sections 28 through 36;
Township 20 South, Range 43 West:	Sections 1, 2, 10 through 36;
Township 20 South, Range 44 West:	Sections 13, 24, 25, 36.

5.2.2.9 No new application for a permit to withdraw designated ground water from the Ogallala Aquifer (including Alluvial and White River Aquifers), absent an approved Replacement Plan, shall be granted where the new Appropriation either will exceed the allowable rate of depletion (40 percent in 100 years) or will cause any depletion in time, amount, or location to any stream within the Republican River Compact Administration (RRCA) Ground Water Model Domain, approved in the final settlement stipulation for the case Kansas v. Nebraska and Colorado, No. 126 Original. The stream depletion shall be determined by the RRCA Ground Water Model and will extend over a 100-year period.

5.2.2.10 Any approved Replacement Plan must be adequate to prevent material injury to all water rights (including designated ground water rights within any Three-Mile Circle in accordance with Rules 5.2.2.3 and 5.2.2.4) of other appropriators in accordance with Rule 5.6. The plan must also provide for the replacement of any depletions caused to streams within the RRCA Ground Water Model Domain.

5.2.3 Southern High Plains Designated Ground Water Basin - Alluvium, Cheyenne, Dakota, Dockum and Ogallala Aquifers

5.2.3.1 The areal extent of the Cheyenne, Dakota, and Ogallala aquifers are shown in Figures 3, 4, and 5 respectively of the report entitled "Ground Water Resources Study - Relating to Portions of Prowers, Baca and Las Animas Counties, Colorado" prepared for the Colorado Ground Water Commission by R. W. Beck and Associates, Denver, Colorado, 1967. The areal extent of Alluvium and Dockum aquifers shall be determined by the Commission based on site specific information and any applicable literature.

5.2.3.2 The aquifers identified above shall be administered as a single geo-hydraulic system.

5.2.3.3 New Large Capacity Well permits can be granted by the Commission to appropriate designated ground water from any of the aquifers identified above in Rule 5.2.3.1, or from the single geo-hydraulic system, if this Appropriation does not unreasonably impair any existing water rights.

5.2.3.4 For any existing Large Capacity Well that was constructed and put to Beneficial Use in compliance with all applicable statutory procedures, and is completed in one, or more than one, of the aquifers identified above in Rule 5.2.3.1, an additional Large Capacity Well permit can be granted by the Commission pursuant to section 37-90-107, C.R.S., for an increase in Appropriation, including an increase in irrigated acres. Any such additional well permit shall have an Appropriation date based on the date of application for the additional permit consistent with section 37-90-109, C.R.S., which shall be separate and distinct from the original Appropriation for the existing well.

5.2.4 Kiowa Bijou Designated Ground Water Basin - Alluvial Aquifer

5.2.4.1 The Alluvial Aquifer shall be defined as identified in Plate 2 of the report "Evaluation of Water Resources in Kiowa and Bijou Creek Basins, Colorado" prepared for the Colorado Water Conservation Board by Colorado State University, Fort Collins, Colorado, 1966, and also includes all unconsolidated material above bedrock within the basin outside the area identified in Plate 2 that is hydraulically connected to the alluvium as identified in Plate 2 as determined by the Commission.

5.2.4.2 The Alluvial Aquifer within the Kiowa Bijou Designated Ground Water Basin is determined to be overappropriated and, therefore, no new Large Capacity Well permits shall be granted in the Alluvial Aquifer unless a Replacement Plan is approved by the Commission in accordance with Rule 5.6.

5.2.5 Lost Creek Designated Ground Water Basin - Alluvial Aquifer

5.2.5.1 The Alluvial Aquifer shall be defined as the area identified in Plate 3 of the report entitled "Ground Water Resources of the Lost Creek Drainage Basin Weld, Adams and Arapahoe counties, Colorado," prepared for the Colorado Ground Water Commission by Nelson, Haley, Patterson and Quirk, Inc., Greeley, Colorado, 1967, and also includes all unconsolidated material above bedrock within the basin outside the area identified in Plate 3 that is hydraulically connected to the alluvium as identified in Plate 3 as determined by the Commission.

5.2.5.2 The Alluvial Aquifer within the Lost Creek Designated Ground Water Basin is determined to be overappropriated and, therefore, no new Large Capacity Well permits shall be granted in the alluvial Aquifer unless a Replacement Plan is approved by the Commission in accordance with Rule 5.6.

5.2.6 Upper Black Squirrel Creek Designated Ground Water Basin - Alluvial Aquifer

5.2.6.1 The Alluvial Aquifer shall be defined as the area identified in Plate 3 of a report entitled "Ground Water Resources of the Upper Black Squirrel Creek Basin, El Paso County, Colorado," prepared by the Colorado Division of Water Resources, Denver, Colorado, 1967, and also includes all unconsolidated material above bedrock within the basin outside the area identified in Plate 3 that is hydraulically connected to the alluvium as identified in Plate 3 as determined by the Commission.

5.2.6.2 The Alluvial Aquifer within the Upper Black Squirrel Creek Designated Basin is determined to be overappropriated and, therefore, no new Large Capacity Well permits shall be granted in the Alluvial Aquifer unless a Replacement Plan is approved by the Commission in accordance with Rule 5.6.

5.2.7 Upper Big Sandy Designated Groundwater Basin

5.2.7.1 The Alluvial Aquifer shall be defined as the area identified in Figure 3 "Interpolated Saturated Alluvial Extent" of the report entitled Upper Big Sandy Designated Groundwater Basin - Phase 2 Water Balance Report June 2009, by Martin and Wood Water Consultants, Inc., and also includes all unconsolidated material above bedrock within the basin outside the area identified in Figure 3 that is hydraulically connected to the Big Sandy Creek alluvium as determined by the Commission.

5.2.7.2 The Alluvial Aquifer within the Upper Big Sandy Designated Basin is determined to be overappropriated and, therefore, no new Large Capacity Well permits shall be granted in the Alluvial Aquifer unless a Replacement Plan is approved by the Commission in accordance with Rule 5.6.

5.2.8 Camp Creek Designated Ground Water Basin - All Aquifers

5.2.8.1 Camp Creek Designated Ground Water Basin consists of Alluvial, Dune Sand, Chadron and Ogallala aquifers. The aquifer boundaries within the basin are identified in Plates 2, 3 and 5 of the report entitled, "Ground Water Resources of Northwest Washington County, Colorado" prepared for Town of Akron by Nelson, Haley, Patterson, and Quirk, Inc., Greeley, Colorado, 1967.

5.2.8.2 A new Large Capacity Well permit can be granted by the Commission to appropriate water from any of the aquifers identified above in Rule 5.2.8.1 if this Appropriation does not unreasonably impair any existing water rights.

5.2.8.3 For any existing Large Capacity Well that was constructed and put to Beneficial Use in compliance with all applicable statutory procedures, and is completed in more than one of the aquifers identified above in Rule 5.2.8.1, an additional Large Capacity Well permit can be granted by the Commission pursuant to section 37-90-107, C.R.S., for an increase in Appropriation, including an increase in irrigated acres. Any such additional well permit shall have an Appropriation date based on the date of application for the additional permit consistent with section 37-90-109, C.R.S., which shall be separate and distinct from the original Appropriation for the existing well.

5.2.9 Upper Crow Creek Designated Ground Water Basin - Alluvial, Fan and White River Aquifers

5.2.9.1 The extent of each aquifer shall be defined as the area identified in Plate 1 of the report entitled, "Water Resources of Upper Crow Creek, Colorado" prepared for the Colorado Geological Survey by Robert Kirkham and John Rold, Denver, Colorado 1986. All but the southern tip of the study area is underlain by the White River Aquifer. The southern tip area is underlain by the Laramie formation.

5.2.9.2 The Alluvial Aquifer, Fan Aquifer and the White River Aquifer are determined to be overappropriated and, therefore, no new Large Capacity Well permits shall be granted in these aquifers unless a Replacement Plan is approved by the Commission in accordance with Rule 5.6.

5.2.9.3 In applying Paragraph 18 of the "Report, Findings of Fact, Conclusions of Law, and Initial Decision of the Hearing Officer - In the Matter of the Creation of a Designated Ground Water Basin On Upper Crow Creek In the State of Colorado", dated January 20, 1987, Case No. 86-GW-12, which became the Order of the Colorado Ground Water Commission creating the Upper Crow Creek Designated Ground Water Basin effective February 20, 1987, the designated ground water to be pumped under any new Large Capacity Well permit shall be considered not tributary to the surface water source of any existing decreed vested surface water right and shall be considered to not injuriously affect any such decreed surface water right.

5.3 Allocation of designated ground water in Denver Basin Bedrock Aquifers

5.3.1 Denver Basin Aquifers

5.3.1.1 The Denver Basin Aquifers are located within the Kiowa Bijou, Lost Creek, Upper Big Sandy, and Upper Black Squirrel Creek Designated Ground Water Basins. The extent of each aquifer is defined in Rule 4(A) of the Denver Basin Rules, 2 CCR 402 6 (January 1, 1986), with the extent of the Laramie-Fox Hills aquifer revised as follows: within the Lost Creek Basin as shown on Figure 3 (consisting of Figure 6 of the January 25, 2013 Division of Water Resources Interoffice Memorandum reporting on Revisions To The Nontributary Boundary For The Laramie-Fox Hills Aquifer In The Lost Creek Designated Basin); within the Kiowa Bijou Basin as shown on Figure 7 (consisting of Figure 3 of the November 29, 2018 Division of Water Resources interoffice Memorandum "Revisions to the location of nontributary groundwater for the Laramie-Fox Hills (LFH) Aquifer in the Lost Creek, Kiowa-Bijou, Upper Big Sandy and Upper Black Squirrel Creek Designated Basins"); within the Upper Big Sandy Basin as shown on Figure 8 (consisting of Figure 4 of the November 29, 2018 Division of Water Resources interoffice Memorandum "Revisions to the location of nontributary groundwater for the Laramie-Fox Hills (LFH) Aquifer in the Lost Creek, Kiowa-Bijou, Upper Big Sandy and Upper Black Squirrel Creek Designated Basins"); and within the Upper Black Squirrel Creek Basin as shown on Figure 9 (consisting of Figure 5 of the November 29, 2018 Division of Water Resources interoffice Memorandum "Revisions to the location of nontributary groundwater for the Laramie-Fox Hills (LFH) Aquifer in the Lost Creek, Kiowa-Bijou, Upper Big Sandy and Upper Black Squirrel Creek Designated Basins").

5.3.1.2 These aquifer definitions are deemed presumptive upon the Commission and Applicants except that the Commission, after reviewing any site specific data, may revise an aquifer boundary.

5.3.2 Allocation of Underlying Designated Ground Water

5.3.2.1 Pursuant to section 37-90-107(7), C.R.S., determinations of Allocations of designated ground water contained in Denver Basin Aquifers shall be on the basis of the ownership of the Overlying Land. Designated ground water that has not been separated from land owned by the Applicant or designated ground water to which Applicant has obtained sufficient written consent, as determined by the Commission, from the owner of the Overlying Land shall be available for Allocation. The availability of such designated ground water is limited by the provisions of these Rules to prevent unreasonable impairment to existing water rights.

5.3.2.2 Applicants applying for a determination of an Allocation of designated ground water contained in any of the Denver Basin Aquifers shall provide:

(1) evidence of the Applicant's ownership of the Overlying Land; or

(2) written consent from the owner of the Overlying Land of the Applicant's withdrawal of the underlying designated ground water; or

(3) evidence of the consent of the owner of the Overlying Land pursuant to Rule 5.3.10 . Any designated ground water identified as a water supply to be developed through individual wells in an approved subdivision water supply plan shall be deemed as being under the control of the individual lot owners absent a legal conveyance to the contrary or absent a resolution adopted pursuant to Rule 5.3.10 . In addition, the Applicant shall provide evidence that the Applicant has given notice of the application by registered or certified mail, return receipt requested, no less than ten days prior to the making of the application, to every record owner of the Overlying Land and to every person who has a lien or mortgage upon, or deed of trust to, the Overlying Land recorded in the county in which the Overlying Land is located, unless the Applicant is a political subdivision of the state of Colorado, special district, municipality, or quasi-municipal district that obtained the right to the underlying water by deed, assignment, or other written evidence of express or implied consent where, at the time of application, the Overlying Land is within the water service area of such entity.

5.3.2.3 The amount of designated ground water in storage in the aquifer under the Overlying Land shall be computed based upon the following formula.

amount of water (acre-feet) =

land area (acres) x Saturated Aquifer Materials (ft) x Specific Yield dimensionless)

See Rule 5.3.4 for the thickness of Saturated Aquifer Materials and Rule 5.7 for Specific Yield values.

5.3.2.4 In computing the land area to be used in Rule 5.3.2.3, if the Cylinder of Appropriation of a well for which a right was created prior to November 19, 1973 as evidenced by a well registration or by a well permit and its Beneficial Use statement, overlap(s) the Overlying Land claimed in the application, the number of acres of Overlying Land to be used in determining the available designated ground water in storage shall be reduced by the number of acres of the Cylinder of Appropriation which overlaps the Overlying Land. An Applicant whose Water Rights are reduced by such cylinder(s) may, upon notice to all affected parties, challenge the Commission's determination of the size of such overlap by requesting an evidentiary hearing before the Commission.

A. In the event that a well completed prior to November 19, 1973 does not fully penetrate the aquifer, the radius of the Cylinder of Appropriation for that well shall be calculated assuming that it does fully penetrate that aquifer.

B. In the event that a well initiated prior to November 19, 1973 is constructed so as to produce designated ground water from more than one aquifer, Cylinders of Appropriation shall be calculated for each aquifer. The production of the well from each aquifer shall be allocated in proportion to the historical production of the well from each aquifer. The interval of each aquifer through which the well is completed shall be considered in the determination of the historical production from each aquifer. Where this perforation interval cannot be determined, the well shall be assumed to be producing from the entire interval of the aquifers involved.

C. The area of the Cylinder of Appropriation for a well(s) which has or can be issued a small capacity well permit pursuant to Section 37 90 105, C.R.S., shall be considered to be zero.

5.3.2.5 The amount of designated ground water in storage in the aquifer under the Overlying Land as computed by Rule 5.3.2.3 that is available for Allocation shall be reduced by the following amounts.

A. The amounts water permitted for withdrawal by existing small capacity wells withdrawing water from the aquifer beneath the Overlying Land that have been issued permits pursuant to section 37-90-105, C.R.S., prior to the issuance of the determination of the Allocation. The amount of water considered to be permitted for withdrawal by an existing small capacity well for purposes of determining the amount of ground water that is available for Allocation shall be computed as one-hundred (100) times the allowed annual withdrawals of the well, unless the well owner states that the existing well will no longer operate under the existing small capacity permit in which case the amount shall be computed as the allowed annual withdrawal of the well times the number of years the well has been in existence, or unless the well is subject to Rule 5.3.2.5.B and a different amount is needed to provide the required supply within the subdivision.

B. The amounts of water to be withdrawn from the aquifer beneath the Overlying Land by small capacity wells in subdivisions that are to be supplied by small capacity wells for which the State Engineer issued to a county an opinion of adequacy on the subdivision's water supply pursuant to section 30-28-136(1)(h)(I), C.R.S.

5.3.2.6 The Allocation shall include all of the water under the Overlying Land which has not been previously allocated, or permitted for withdrawal as described in this Rule 5.3.2.

5.3.3 Allowable Rate of Withdrawal

5.3.3.1 Pursuant to section 37-90-107(7), C.R.S., permits issued for Allocations of designated ground water pursuant to subsection (7) shall allow withdrawals on the basis of an aquifer life of one hundred years.

5.3.3.2 The amount of water determined to be allocated in Rule 5.3.2 that is available for withdrawal by well permits issued pursuant to section 37-90-107(7), C.R.S. is the amount of water determined to be allocated in Rule 5.3.2 minus any amounts of the allocated water permitted to be withdrawn by small capacity wells issued permits pursuant to section 37-90-105, C.R.S., after the issuance of a determination of an Allocation. The amounts of allocated water considered to be permitted to be withdrawn by small capacity wells shall be computed as one-hundred (100) times the allowed annual withdrawals of those wells.

5.3.3.3 The Allowed Average Annual Amount of Withdrawal of water from any of these aquifers is determined by the formula:

Allowed Average Annual Amount of Withdrawal (acre-feet / year) =

amount of water determined to be allocated in Rule 5.3.2 as adjusted by Rule 5.3.3.2 (acre-feet) / 100 years

5.3.3.4 The Allowed Maximum Annual Amount of Withdrawal may exceed the Allowed Average Annual Amount of Withdrawal as long as the total volume of designated ground water withdrawn from the well or wells does not exceed the product of the number of years since the date or dates of issuance of the well permit or permits times the Allowed Average Annual Amount of Withdrawal. This provision is not applicable to a well whose water right was created prior to November 19, 1973. Existing wells operating under overlying land ownership based rights with permits that do not have this provision may avail themselves of this provision upon written approval of the Commission.

5.3.4 Determination of thickness of Saturated Aquifer Materials in the Denver Basin Aquifers

5.3.4.1 The thicknesses of sandstones and siltstones in the Denver Basin Aquifers are shown on the following figures prepared by the Colorado Division of Water Resources:

a. Upper Dawson	Denver Basin Atlas No. 1, Plate 3, Figure 1E
b. Lower Dawson	Denver Basin Atlas No. 1, Plate 2, Figure 1C
c. Denver	Denver Basin Atlas No. 2, Plate 2, Figure 2C
d. Upper Arapahoe	Denver Basin Atlas No. 3, Plate 4, Figure 3E minus Plate 5, Figure 3F*
e. Lower Arapahoe	Denver Basin Atlas No. 3, Plate 5, Figure 3F
f. Laramie-Fox Hills	Denver Basin Atlas No. 4, Plate 3, Figure 4C

* To find the thickness of the Upper Arapahoe Aquifer subtract the thickness value shown in Plate 5, Figure 3F from the thickness value shown in Plate 4, Figure 3E. Where there is no overlap between figures, Figure 3F value is zero.

5.3.4.2 The thicknesses on the above figures, subject to any revisions thereof by the Commission based upon any site specific data, shall be considered to be the thickness of Saturated Aquifer Material as long as the aquifer is confined, i.e., under artesian pressure. The Applicant may be required by the Commission to demonstrate that the aquifer is still confined or, if the aquifer is unconfined, to provide data on the site specific location of the water table. Upon evaluating the location of the water table, the Commission shall determine the thickness of Saturated Aquifer Materials.

5.3.5 Standards for requirements of geophysical logs and test holes in the Denver Basin aquifers shall be the same as set forth in Rules 9 and 10 of the Statewide Nontributary Ground Water Rules, 2 CCR 402 7 (March 3, 1986).

5.3.6 Replacement Water Requirements for the Denver Basin aquifers: The Commission recognizes that the pumping of designated ground water from the Dawson, Denver, Arapahoe and Laramie Fox Hills aquifers may cause depletions in the overlying alluvial aquifers which may affect vested water rights. Necessary terms and conditions shall be imposed on any new well permit to insure no unreasonable impairment to the rights of other appropriators.

5.3.6.1 The locations of Nontributary Ground Water for the Denver Basin Aquifers are shown in the figures referenced below. The Commission may accept site specific information if it finds that information is more precise.

A. The location of Nontributary Ground Water in the Upper Dawson Aquifer is shown in Denver Basin Atlas No. 1, Plate 4, Figure 1G as revised March 21, 1991.

B. The location of Nontributary Ground Water in the Lower Dawson Aquifer is shown in Denver Basin Atlas No. 1, Plate 4, Figure 1F as revised March 21, 1991.

C. The location of Nontributary Ground Water in the Denver Aquifer is shown in Denver Basin Atlas No. 2, Plate 2, Figure 2D as revised March 21, 1991, as revised within the Kiowa Bijou, Upper Big Sandy, and Upper Black Squirrel Creek Basins as shown on Figure 4 (consisting of Figure 1 of the October 15, 2018 Interoffice Memorandum "Revisions to the location of nontributary ground water for the Denver Aquifer in the Kiowa-Bijou, Upper Big Sandy and Upper Black squirrel creek Designated Basins").

D. The location of Nontributrary Ground Water in the Upper Arapahoe Aquifer is shown in Denver Basin Atlas No. 3, Plate 6, Figure 3H as revised March 21, 1991, as revised within the Kiowa Bijou and Upper Big Sandy Designated Basins as shown on Figure 5 (consisting of Figure 1 of the October 15, 2018 Interoffice Memorandum "Revisions to the location of nontributary ground water for the Arapahoe Aquifer in the Kiowa-Bijou and Upper Big Sandy Designated Basins").

E. The location of Nontributary Ground Water in the Lower Arapahoe Aquifer is shown in Denver Basin Atlas No. 3, Plate 5, Figure 3G as revised March 21, 1991.

F. The location of Nontributary Ground Water in the Laramie Fox Hills Aquifer is shown in Denver Basin Atlas No. 4, Plate 4, Figure 4D as revised March 21, 1991, and as revised as follows: within the Lost Creek Basin as shown on Figure 6 (consisting of Figure 7 of the January 25, 2013 Division of Water Resources Interoffice Memorandum "Revisions to the Nontributary Boundary for the Laramie-Fox Hills Aquifer in the Lost Creek Designated Basin"); within the Kiowa Bijou Basin as shown on Figure 7 (consisting of Figure 3 of the November 29, 2018 Division of Water Resources interoffice Memorandum "Revisions to the location of nontributary groundwater for the Laramie-Fox Hills (LFH) Aquifer in the Lost Creek, Kiowa-Bijou, Upper Big Sandy and Upper Black Squirrel Creek Designated Basins"); within the Upper Big Sandy Basin as shown on Figure 8 (consisting of Figure 4 of the November 29, 2018 Division of Water Resources interoffice Memorandum "Revisions to the location of nontributary groundwater for the Laramie-Fox Hills (LFH) Aquifer in the Lost Creek, Kiowa-Bijou, Upper Big Sandy and Upper Black Squirrel Creek Designated Basins"); and within the Upper Black Squirrel Creek Basin as shown on Figure 9 (consisting of Figure 5 of the November 29, 2018 Division of Water Resources interoffice Memorandum "Revisions to the location of nontributary groundwater for the Laramie-Fox Hills (LFH) Aquifer in the Lost Creek, Kiowa-Bijou, Upper Big Sandy and Upper Black Squirrel Creek Designated Basins").

5.3.6.2 Replacement Water Required:

A. Terms and conditions for withdrawal of Nontributary Ground Water from the Dawson, Denver, Arapahoe and Laramie Fox Hills aquifers shall provide that no more than 98% of the water withdrawn annually is consumed.

B. Terms and conditions for withdrawal of Not-nontributary Ground Water from the Denver, Arapahoe, or Laramie Fox Hills aquifers originating from beneath Overlying Land located farther than 1 mile from the contact with the alluvium shall provide for the replacement to the alluvium of 4 percent of the water diverted. The delivery of replacement water to the alluvial aquifer in the vicinity of the point of withdrawal, as determined by the Commission, shall be presumed to result in no material injury to water rights of appropriators of alluvial water, but replacement at other locations may be approved by the Commission. The Well Owner is responsible for any required measurements of delivery of the replacement water. When applying for a well permit, and at any time thereafter upon request, the Applicant must identify the proposed, or actual, location of the delivery of the replacement water and how the required 4 percent of water diverted will be, or is being, delivered into to the alluvial aquifer. Credit for diffuse return flow shall be given only to the extent that the Well Owner has maintained control over such waters and can quantify such returns by reasonable engineering methods acceptable to the Commission.

C. Terms and conditions for withdrawal of Not-nontributary Ground Water from the Dawson Aquifer, or Not-nontributary Ground Water from the Denver, Arapahoe, or Laramie Fox Hills aquifers originating from beneath Overlying Land located closer than one mile from the contact with the alluvium,, shall provide for the depletion of alluvial water for the first 100 years due to all previous pumping, and if pumping continues beyond 100 years shall replace actual impact until pumping ceases, assuming water table conditions in the bedrock aquifer. The Applicant must obtain a Replacement Plan under Rule 5.6.

5.3.6.3 For wells which will withdraw water having more than one replacement requirement as identified in items A, B, and C of Rule 5.3.6.2, the replacement requirements shall be determined as follows.

A. In order to withdraw Nontributary Ground Water, or Not-nontributary Ground Water as described in Rule 5.3.6.2.B, from a well located in an area overlying Not-nontributary Ground Water as described in Rule 5.3.6.2.C, a Replacement Plan must be obtained under Rule 5.6 in the same manner as if the water withdrawn were Not-nontributary Ground Water described in Rule 5.3.6.2.C.

B. In order to withdraw Nontributary Ground Water from a well located in an area overlying Not-nontributary Ground Water as described in Rule 5.3.6.2.B, terms and conditions shall provide for the delivery to the alluvium of 4 percent of the water diverted from such well in the same manner as if the water withdrawn were Not-nontributary Ground Water described in Rule 5.3.6.2.B.

C. If Not-nontributary Ground Water as described in Rule 5.3.6.2.C is to be withdrawn from a well located in an area overlying Not-nontributary Ground Water as described in Rule 5.3.6.2.B or an area overlying Nontributrary Ground water, a Replacement Plan must be obtained under Rule 5.6 as described in Rule 5.3.6.2.C.

D. If Not-nontributary Ground Water as described in Rule 5.3.6.2.B is to be withdrawn from a well located in an area overlying Nontributary Ground Water, terms and conditions shall provide for the delivery to the alluvium of 4 percent of the designated ground water diverted from such well in the manner as described in Rule 5.3.6.2 .B.

E. If the replacement water requirements stated in Rule 5.3.6.2 conflict with the requirements stated in Rule 5.3.6.3, the provisions of Rule 5.3.6.3 override those stated in Rule 5.3.6.2.

5.3.6.4 The measurement of annual withdrawals and the keeping of records is the responsibility of the Well Owner. The annual diversion from the period January 1 to December 31 of each year shall be the basis for computation of the replacement requirement.

5.3.6.5 The Well Owner shall be required to provide such self administration as determined necessary by the Commission to assure compliance with permit terms and conditions. Self administration may include metering, reporting or the retention of a neutral third party as reporting agent.

5.3.7 Well Location: All wells, including Additional Wells, withdrawing designated ground water from the Denver Basin Aquifers, must be located on the Overlying Land.

5.3.7.1 A permit shall not be issued for a Large Capacity Well under Rule 5.3 if this well is to be located within 600 feet of an existing Large Capacity Well in the same aquifer unless a Waiver of Claim of Injury is obtained from the owner of the existing well or unless the Commission, after a hearing, finds that circumstances in a particular instance warrant that a permit can be issued without regard to the above limitation, or unless the proposed well will serve an individual residential site and the proposed pumping rate will not exceed fifty gallons per minute.

5.3.7.2 If the Applicant has identified noncontiguous parcels of Overlying Land, the Applicant may withdraw the total Allowed Average Annual Amount of Withdrawal from one or more wells, provided that the well or wells are located so that the Cylinder or Cylinders of Appropriation for at least one of the wells overlap, at least in part, the noncontiguous parcels. In determining the Cylinder of Appropriation, the acreage from the noncontiguous parcels shall be included in the calculation.

5.3.8 Operation of a Well Field may be permitted where the entire Allocation for the several wells withdrawing designated ground water from the same aquifer may be withdrawn from any combination of wells within the Well Field. Such a plan may be approved at the time of original permitting or by subsequent request for a change pursuant to section 37 90 111(1)(g), C.R.S.

5.3.9 Additional Wells may be permitted so long as the effect is that the Allowed Average Annual Amount of Withdrawal from all wells involved will not exceed the permitted Allowed Average Annual Amount of Withdrawal as originally established pursuant to Rule 5.3.3.

5.3.10 It is recognized that economic considerations generally make it impractical for individual landowners to drill wells into the aquifers named in Rule 5.3 for individual water supplies where municipal or quasi municipal water service is available and that public interest justifies the use of such designated ground water by municipal or quasi municipal water suppliers under certain conditions. Therefore, wherever any existing municipal or quasi municipal water supplier is obligated either by law or by contract in effect prior to January 1, 1985, to be the principal provider of public water service to landowners within a certain municipal or quasi municipal boundary in existence on January 1, 1985, said water supplier may adopt an ordinance or resolution, after ten days notice pursuant to the provisions of Part 1 of Article 70 of Title 24, C.R.S, which incorporates designated ground water from the Dawson, Denver, Arapahoe, or Laramie Fox Hills aquifers underlying all or any specified portion of such municipality's or quasi municipality's boundary into its actual municipal service plan. Upon adoption of such ordinance or resolution, a detailed map of the land area as to which consent is deemed to have been given shall be filed with the Commission. Upon the effective date of such ordinance or resolution, the owners of land which overlies such designated ground water shall be deemed to have consented to the withdrawal by that water supplier of all such designated ground water, except that no such consent shall be deemed to be given with respect to any portion of the land if:

A. Water service to such portion of the land is not reasonably available from said water supplier and no plan has been established by that supplier allowing the landowner to obtain an alternative water supply;

B. Such ordinance or resolution was adopted prior to September 1, 1985, and, prior to January 1, 1985, such designated ground water was conveyed or reserved or consent to use such designated ground water was given or reserved in writing to anyone other than such water supplier and such conveyance, reservation, or consent has been properly recorded prior to August 31, 1985;

C. Such ordinance or resolution is adopted on or after September 1, 1985, and said designated ground water has been conveyed or reserved or consent to use such designated ground water has been given or reserved in writing to anyone other than such water supplier and such conveyance, reservation, or consent is properly recorded in the county where the Overlying Land is located before the effective date of that ordinance or resolution;

D. Consent to use such designated ground water has been given to anyone other than such water supplier by the lawful effect of an ordinance or resolution adopted prior to January 1, 1985;

E. Such designated ground water has been decreed or permitted to anyone other than such water supplier prior to the effective date of such ordinance or resolution; or

F. Such portion of the land is not being served by said water supplier as of the effective date of such ordinance or resolution and such designated ground water is the subject of an application for determination of a right to use designated ground water filed with the Commission prior to July 1, 1985.

5.3.11 The Commission recognizes that the State Engineer has the authority to issue small capacity well permits in accordance with section 37-90-105, C.R.S. and that small capacity well permits are not subject to the requirements of these rules or any terms and conditions of a Commission issued allocation of designated ground water.

5.4 Allocation from all Bedrock Aquifers Except the Denver Basin Bedrock Aquifers

5.4.1 This Rule shall apply to all aquifers in all the designated basins except those aquifers listed below:

A. Lost Creek, Kiowa Bijou, Upper Big Sandy and Upper Black Squirrel Creek Basins: Alluvium and Denver Basin Bedrock aquifers.

B. Northern High Plains and Camp Creek Basins: Alluvium, Ogallala, and White River aquifers.

C. Southern High Plains Basin: Alluvium, Ogallala, Dakota, Cheyenne and Dockum aquifers.

D. Upper Crow Creek: Alluvium, Fan, and White River aquifers.

5.4.2 Permits for Allocations of designated ground water contained in any of the aquifers subject to Rule 5.4 shall be analyzed on the basis of the ownership of the Overlying Land and shall allow withdrawals on the basis of an aquifer life of one hundred years. Designated ground water that has not been separated from land owned by the Applicant or designated ground water to which Applicant has obtained sufficient written consent, as determined by the Commission, from the owner of the Overlying Land shall be available for Allocation. The availability of such designated ground water is limited by the provisions of these rules to prevent unreasonable impairment to existing water rights.

5.4.2.1 Applicants applying for a permit for an Allocation of designated groundwater contained in any of the aquifers subject to Rule 5.4 shall provide:

(1) evidence of the Applicant's ownership of the Overlying Land; or

(2) written consent from the owner of the Overlying Land of the Applicant's withdrawal of the underlying designated ground water; or

(3) evidence of the consent of the owner of the Overlying Land pursuant to Rule 5.4.13.

5.4.2.2 The Applicant shall provide evidence that that the Applicant has given notice of the application by registered or certified mail, return receipt requested, no less than ten days prior to the making of the application, to every record owner of the Overlying Land and to every person who has a lien or mortgage upon, or deed of trust to, the Overlying Land recorded in the county in which the Overlying Land is located, unless the Applicant is a political subdivision of the state of Colorado, special district, municipality, or quasi-municipal district that obtained the right to the underlying water by deed, assignment, or other written evidence of express or implied consent where, at the time of application, the Overlying Land is within the water service area of such entity.

5.4.3 The amount of designated ground water available in storage in a specified Bedrock Aquifer under a specified parcel of land shall be computed based upon the site specific hydrogeologic information available to the Commission, as determined by the formula:

Equation no. 1

amount of water (acre-feet) =

land area (acres) x Saturated Aquifer Materials (ft) x Specific Yield (dimensionless)

5.4.3.1 In computing the land area to be used in Equation no. 1, if the Cylinder of Appropriation of a well for which a right was created prior to May 1, 1992 as evidenced by a well registration or by a well permit, overlap(s) the Overlying Land claimed in the application, the number of acres of land area to be used in determining the available designated ground water in storage shall be the Overlying Land claimed in the application reduced by the number of acres of the Cylinder of Appropriation which overlaps the Overlying Land. An Applicant whose water rights are reduced by such cylinder(s) may, upon notice to all affected parties, challenge the Commission's determination of the size of such overlap by requesting an evidentiary hearing before the Commission.

A. In the event that a well completed prior to May 1, 1992 does not fully penetrate the aquifer, the radius of the Cylinder of Appropriation for that well shall be calculated assuming that it does fully penetrate that aquifer.

B. In the event that a well initiated prior to May 1, 1992 is constructed so as to produce designated ground water from more than one aquifer, and is not permitted for a single aquifer of production, Cylinders of Appropriation shall be calculated for each aquifer. The production of the well from each aquifer shall be allocated in proportion to the historical production of the well from each aquifer. The interval of each aquifer through which the well is completed shall be considered in the determination of the historical production from each aquifer. Where this perforation interval cannot be determined, the well shall be assumed to be producing from the entire interval of the aquifers involved.

C. The area of the Cylinder of Appropriation for an existing well(s) which has or can be issued a small-capacity well permit pursuant to section 37-90-105, C.R.S., shall be considered to be zero.

5.4.3.2 The amount of designated ground water in storage in the aquifer under the Overlying Land as computed by Rule 5.4.3 that is available for Allocation shall be reduced by the amounts of water permitted for withdrawal by existing small capacity wells withdrawing water from the aquifer beneath the Overlying Land that have been issued permits pursuant to section 37-90-105, C.R.S., prior to the issuance of the permit for the Allocation. The amount of water considered to be permitted for withdrawal by an existing small capacity well for purposes of determining the amount of ground water that is available for Allocation shall be computed as one-hundred (100) times the allowed annual withdrawals of the well, unless the well owner states that the existing well will no longer operate under the existing small capacity permit in which case the amount shall be computed as the allowed annual withdrawal of the well times the number of years the well has been in existence.

5.4.3.3 The Allocation shall include all of the water under the Overlying Land which has not been previously allocated, or permitted for withdrawal as described in this Rule 5.4.3.

5.4.4 The Allowed Average Annual Amount of Withdrawal of water is determined by the formula:

Equation no. 2

Allowed Average Annual Amount of Withdrawal (acre-feet / year) =

amount of water determined to be allocated in Rule 5.4.3 as adjusted by Rule 5.4.3.2 (acre-feet) / 100 years

5.4.5 The Allowed Maximum Annual Amount of Withdrawal may exceed the Allowed Average Annual Amount of Withdrawal as long as the total volume of water withdrawn from the well or wells does not exceed the product of (the number of years since the date of issuance of the first well permit or permits for the amount of underlying water) times (the Allowed Average Annual Amount of Withdrawal). This provision is not applicable to a well whose water right was created prior to May 1, 1992.

5.4.6 If the Applicant has identified noncontiguous parcels of Overlying Land, the Applicant may withdraw the total Allowed Average Annual Amount of Withdrawal from a well, provided that the well is located so that its Cylinder of Appropriation overlaps, at least in part, the noncontiguous parcels. In determining the Cylinder of Appropriation, the acreage from the noncontiguous parcels shall be included in the calculation.

5.4.7 Additional Wells may be permitted to withdraw the amount of water available in storage as determined in Rule 5.4.3 so long as the Allowed Average Annual Amount of Withdrawal as computed in Rule 5.4.4 and the Allowed Maximum Annual Amount of Withdrawal as identified in Rule 5.4.5 are not exceeded.

5.4.8 All wells must be located on the Overlying Land.

5.4.9 Prior to, or concurrent with, issuance of a permit for the withdrawal of any water that does not meet the definition of Nontributary Ground Water, a Replacement Plan must be obtained pursuant to Rule 5.6 . The Replacement Plan must provide for the replacement of injurious depletions for the first 100 years due to all previous pumping, and if pumping continues beyond 100 years shall replace injurious depletions until pumping ceases.

5.4.10 Standards for requirements of geophysical logs and test holes in wells permitted pursuant to this Rule 5.4 shall be the same as set forth in Rules 9 and 10 of the Statewide Nontributary Ground Water Rules, 2 CCR 402 7 (March 3, 1986).

5.4.11 A permit shall not be issued for a Large Capacity Well under Rule 5.4 if this well is to be located within 600 feet of an existing Large Capacity Well in the same aquifer unless a Waiver of Claim of Injury is obtained from the owner of the existing well, or unless the Commission, after a hearing, finds that circumstances in a particular instance warrant that a permit can be issued without regard to the above limitation, or unless the proposed well will serve an individual residential site and the proposed pumping rate will not exceed fifty gallons per minute.

5.4.12 All wells must have a totalizing flow meter installed, or have an alternate method of measurement of withdrawals as approved by the Commission. The measurement of annual withdrawals and the keeping of permanent records of all withdrawals is the responsibility of the Well Owner.

5.4.13 It is recognized that economic considerations generally make it impractical for individual landowners to drill wells into the aquifers named in Rule 5.4 for individual water supplies where municipal or quasi municipal water service is available and that public interest justifies the use of such designated ground water by municipal or quasi municipal water suppliers under certain conditions. Therefore, wherever any existing municipal or quasi municipal water supplier is obligated either by law or by contract in effect prior to January 1, 1985, to be the principal provider of public water service to landowners within a certain municipal or quasi municipal boundary in existence on January 1, 1985, said water supplier may adopt an ordinance or resolution, after ten days notice pursuant to the provisions of Part 1 of Article 70 of Title 24, C.R.S, which incorporates designated ground water from the aquifers subject to Rule 5.4 underlying all or any specified portion of such municipality's or quasi municipality's boundary into its actual municipal service plan. Upon adoption of such ordinance or resolution, a detailed map of the land area as to which consent is deemed to have been given shall be filed with the Commission. Upon the effective date of such ordinance or resolution, the owners of land which overlies such designated ground water shall be deemed to have consented to the withdrawal by that water supplier of all such designated ground water, except that no such consent shall be deemed to be given with respect to any portion of the land if:

B. Such ordinance or resolution was adopted prior to September 1, 1985 and, prior to January 1, 1985 such designated ground water was conveyed or reserved or consent to use such designated ground water was given or reserved in writing to anyone other than such water supplier and such conveyance, reservation, or consent has been properly recorded prior to the effective date of these rules;

D. Consent to use such designated ground water has been given to anyone other than such water supplier by the lawful effect of an ordinance or resolution adopted prior to January 1, 1985;

E. Such designated ground water has been decreed or permitted to anyone other than such water supplier prior to the effective date of such ordinance or resolution; or

F. Such portion of the land is not being served by said water supplier as of the effective date of such ordinance or resolution and such designated ground water is the subject of an application for a permit to use designated ground water filed with the Commission prior to July 1, 1985.

5.4.14 The Commission recognizes that the State Engineer has the authority to issue small capacity well permits in accordance with section 37-90-105, C.R.S., and that small capacity well permits are not subject to the requirements of these rules or any terms and conditions of a Commission issued permits for an allocation of designated ground water.

5.5 Water Quantity Requirements for Issuance of New Permits for Irrigation Use - For new permits issued under other than Rules 5.3 or 5.4, the amount of designated ground water to be appropriated for irrigation of agricultural lands shall be 2 1/2 acre-feet per irrigated acre for all aquifers in all designated basins except the Southern High Plains Basin where this amount shall be 3 1/2 acre-feet per acre. In reviewing permit applications, the amount of designated ground water available for Appropriation must be sufficient to irrigate the requested acreage at the prescribed rate unless an exception is granted by the Commission.

5.6 Replacement Plans - New appropriations of designated ground water from aquifers which are otherwise overappropriated or where such appropriations may result in an unreasonable impairment to existing water rights may be allowed pursuant to a detailed Replacement Plan. The source of water proposed to be delivered as replacement supply is referred to in this Rule as Replacement Source Water.

5.6.1 Requirements for approval of all Replacement Plans. The Applicant shall have the burden of proving the adequacy of the plan in all respects. If the Applicant meets its burden of proof, the Commission shall grant approval of a Replacement Plan to the Applicant which shall include any terms and conditions established by the Commission.

A. The plan must not cause any material injury to water rights of other appropriators.

B. The plan must not cause unreasonable impairment of water quality.

1. In making this determination, there shall be a rebuttable presumption of no unreasonable impairment of water quality if the Replacement Source Water complies with one of the criteria listed below.

a. If the Replacement Source Water is subject to a Colorado Department of Public Health, Water Quality Control Division permit authorizing discharges into the aquifer that is not subject to a compliance order or enforcement actions, and the Applicant demonstrates compliance with the Water Quality Control Division groundwater discharge permit, using the relevant points of compliance established in the permit; or

b. If the Replacement Source Water is from an onsite wastewater treatment system permitted by a local health agency, and the applicant demonstrates the source is in compliance with that permit; or

c. If the Replacement Source Water meets site specific standards contained in the Department of Public Health and Environment, Water Quality Control Commission's Regulation No. 42 (5 CCR 1002-42, effective June 30, 2018), or if there are not site specific standards, meets standards set forth in the Department of Public Health and Environment, Water Quality Control Commission's Regulation No. 41 (5 CCR 1002-41, effective December 30, 2018), including all of the standards in Tables 1-4, and, in both instances, the point of compliance is the point at which the water is recharged into the aquifer. The Commission may consult with the Department of Public Health and Environment Water Quality Control Division in determining whether the source meets the standards of the relevant regulation.

2. Other methods of proving Replacement Source Water will not cause unreasonable impairment of water quality may be proposed. The Commission may consult with the Department of Public Health and Environment Water Quality Control Division in determining whether the source will or will not cause unreasonable impairment of water quality.

3. During any hearing, once the Applicant presents evidence sufficient to make a prima facie showing of no unreasonable impairment of water quality, any party opposing the Replacement Plan bears the burden of providing evidence of unreasonable impairment to water quality. If Commission Staff or a party opposing the replacement plan provides contrary evidence of impairment, the burden shifts back to the Applicant to rebut that evidence and show an absence of unreasonable impairment of water quality by a preponderance of the evidence.

C. The proposed Replacement Plan, including the uses of the new withdrawals of designated ground water, must not be speculative under Colorado law. The Applicant must demonstrate the plan's technical and financial feasibility and the Applicant's ability to complete the project.

D. The Replacement Plan must be able to be operated and administered on an ongoing and reliable basis.

1. Replacement Source Water consisting of designated ground water must be diverted from its source and delivered into the aquifer for which the replacement water must be provided using a structure or method acceptable to the Commission. Delivery of the Replacement Source Water to an aquifer by way of claiming credit for not diverting a proposed source of water out of an aquifer is not allowed.

2. Pursuant to section 37-90-107.5, C.R.S., a Replacement Plan shall not be used as a vehicle for avoiding limitations on existing wells, including but not limited to restrictions on change of well locations. Therefore, before approving any Replacement Plan that includes existing wells, the Commission shall require independent compliance with all rules governing those existing wells in addition to compliance with any guidelines or rules governing replacement plans.

3. Flow or other measurement devices must be installed, operated, and maintained on all wells, replacement water delivery structures, and any other structure involved in the plan unless the Commission finds that such devices would be unnecessary or impractical.

4. Water quality sampling and monitoring shall be done of the Replacement Source Water at the point the Replacement Source Water is introduced into the aquifer, at any other point of compliance and at monitoring well(s) in the aquifer, as required by the Replacement Plan. The Commission may require a different location and frequency of water quality monitoring if the evidence indicates that a different location or frequency is more appropriate or feasible for the aquifer.

5. The Applicant must record, maintain and submit records of Replacement Plan operations on forms acceptable to the Commission on a schedule determined by the Commission but no less than on an annual basis, which shall also be made available to the ground water management district and parties to the original Replacement Plan proceedings on request without charge.

6. Replacement Plan approvals shall include appropriate terms and conditions for updating and/or recalibration of groundwater model(s) and a schedule for specified adjustments to the plan in accordance with the potential results of any such updated/recalibrated modeling. Plan approvals shall also include appropriate terms and conditions for ongoing water quality sampling and monitoring and monitoring of groundwater levels and a schedule for specified adjustments to the plan in accordance with the potential results of any ongoing sampling and monitoring.

E. A copy of the approved Replacement Plan must be recorded by the Applicant in the clerk and recorder's records of the county in which structures that recharge and withdraw water involved in the plan are located so that a title examination of the land on which such structures are located reveals the existence of the plan.

F. Diversions must be limited to the extent necessary to ensure that the potential for material injury caused by the diversions will be prevented by Replacement Source Water physically and legally available for delivery to the aquifer in time, place and amount sufficient to prevent material injury to potentially affected water rights holders. Plan approvals may include terms and conditions to account for recharged water that is lost to vegetative consumption or evaporation.

G. Applicant must demonstrate that any Replacement Source Water identified for use in the Replacement Plan is legally available for use pursuant to the plan prior to actually being used as Replacement Source Water pursuant to the Replacement Plan.

1. For any Replacement Source Water decreed by a water court in a tributary system, the legality of the use of the water shall be determined by consideration of the water court decree consistent with the provisions of the Water Rights Determination and Administration Act of 1969 ("1969 Act") and Colorado case law regarding decree interpretation.

2. Any determination concerning a 1969 Act source of water shall pertain only to the use of such right in the Replacement Plan.

3. The Commission may approve a Replacement Plan including proposed Replacement Source Water that is not legally available for use pursuant to the plan at the time the Replacement Plan is approved, if the Applicant:

(1) has demonstrated it has a legal right to use the Replacement Source Water, as demonstrated by ownership or contract and that the replacement water will not be used by any other person; and

(2) has demonstrated a reasonable probability of obtaining such approvals as are necessary to make the Replacement Source Water legally available for use in the Replacement Plan. An Applicant seeking approval of proposed Replacement Source Water shall have the burden of proving the time, place, amount and quality of the supplies anticipated in a manner sufficiently detailed to permit the Commission, the ground water management district, and other parties the ability to assess the actual use of the Replacement Source Water in the plan.

4. A Replacement Plan approving the future use of proposed Replacement Source Water not legally available at the time of the application shall include the following procedures requiring the Applicant to provide written notice to the Commission, the ground water management district, and all parties in the Replacement Plan proceedings when that Replacement Source Water has become legally available:

a. Applicant shall give at least sixty-three (63) days advance written Notice of Legal Availability of Replacement Source ("Notice") to the Commission, the ground water management district, and the parties in the original Replacement Plan proceedings, prior to using such Replacement Source Water in the Replacement Plan, which shall identify:

(1) the amount available for use pursuant to the Replacement Plan;

(2) documentation as to how the Replacement Source Water became legally available, including copies of all decrees, permits, findings and orders and determinations issued by the Commission and Courts.

b. Any person may provide written comments on the Notice, which shall be submitted to the Commission and provided to the ground water management district and all parties to the original Replacement Plan proceedings within sixty-three (63) days after the date the Notice was submitted. Commission Staff shall consider any comments in determining:

(1) whether the requirements of 5.6.1.G.4.a are met; and

(2) any plan adjustments under the terms and conditions of 5.6.1.D.6 that are to be implemented for use of the Replacement Source Water in the Replacement Plan. Applicant may not use the Replacement Source Water until Commission Staff provides written confirmation the requirements of 5.6.1.G.4.a are met and setting forth any plan adjustments under 5.6.1.D.6 that are necessary for use of the Replacement Source Water in the Replacement Plan.

c. The Replacement Plan shall state that any Notice must be served no later than six (6) years after the date of approval of the Replacement Plan by the Commission or the Applicant's right to use the source water shall expire. After the expiration, Applicant may only add the Replacement Source Water to the Replacement Plan by a new application to the Commission.

H. Once a Replacement Plan has been approved, any proposed Replacement Source Water not included in the Replacement Plan approval shall only be added to the Replacement Plan by a new application to the Commission. The Commission shall determine the terms and conditions under which the proposed Replacement Source Water shall be added to the Replacement Plan.

I. Replacement Source Water introduced into a designated aquifer is designated groundwater available to other appropriators in the basin.

J. Ground water management districts may have additional rules governing the operation of Commission approved Replacement Plans and may require compliance with such rules.

5.6.2 Applications for Replacement Plans must contain the following.

A. Name, mailing address, email address and telephone number of Applicant(s).

B. Name of designated basin in which plan will be located, and management district, if any, and aquifer in which the plan will operate.

C. Information regarding other water rights diverted from the structures involved in the plan.

D. Maps (either USGS topographic base map or other base map as appropriate) showing the locations of all structures involved in the Replacement Plan, including all recharge wells, recharge ponds, and other structures involved in recharging Replacement Source Water, all structures involved in delivering the Replacement Source Water to the project location, and all structures involved in delivering the new diversions to the end use.

E. A detailed description of the plan and its operation, including the following.

1. A general description of the Replacement Plan project location.

2. The purpose of the Replacement Plan.

3. The detailed description of the physical and legal sources of all proposed Replacement Source Water. Identify the amount of water available for replacement use from each source and provide copies of all decrees, permits, findings and orders and determinations issued by the Ground Water Commission and Courts.

4. The description of how the Replacement Source Water is delivered to the Replacement Plan project for recharge.

5. The method, location, timing, and amount of Replacement Source Water being recharged into the aquifer including without limitation identification of the structures that will recharge the Replacement Source Water, such as by recharge through a well or through a pond.

6. Based on Applicant's proposed Replacement Plan operations, the maximum volume of water proposed to be introduced into the aquifer in any day, month and year, as applicable.

7. The detailed description of the method, location, timing and amount of proposed new diversions and depletions caused by the new appropriations of designated basin water, including without limitation identification of the structures that will divert, legal descriptions of their locations, and identification and copies of all decrees, permits, findings and orders and determinations issued by the Commission and Courts involving the structures.

8. The proposed use of the new diversions.

9. The proposed quantity and quality monitoring plan.

10. The approximate cost of the Replacement Plan project and the approximate date construction will begin and end.

F. Evidence that the plan will not injure other water rights.

G. Evidence that the plan does not cause unreasonable impairment of water quality. Such evidence shall include water quality for the Replacement Source Water and the water quality of the receiving aquifer unless 5.6.1.B.1.a applies.

H. Proposed terms and conditions required to prevent injury to other water rights, and prevent unreasonable impairment of water quality.

I. If required by Commission Staff, the Applicant shall submit a ground water model evidencing no material injury to vested rights or unreasonable impairment of water quality will result from operation of the plan.

J. A detailed description of the proposed use of the new appropriation of designated ground water which would result under the plan, including where the use will occur.

K. Name(s) and address(es) of owner(s) or reputed owner(s) of the land upon which structures that withdraw water and recharge replacement water involved in the plan are located. The Applicant must notify these owners that the Applicant is applying for this Replacement Plan, and provide proof to the Commission that the Applicant has done so, no later than 14 days after filing the application. Applicant may rely on the records maintained by the applicable County, including records available online, to determine the owner(s) or reputed owner(s), unless Applicant has actual knowledge or information of others not identified in said records.

L. If proposed Replacement Source Water is not legally available for use in the Replacement Plan at the time the application is submitted, the Applicant must identify any applications it has or is submitting or actions it has or is taking to make the source legally available.

M. Applicant must provide information demonstrating the Applicant's right to use all proposed Replacement Source Water and that the Replacement Source Water will not be used by any other person.

N. A summary of the application for publication. If required by the Commission, the summary must be submitted in an electronic form that can be provided to the newspaper in which publication occurs.

5.6.3 Other than approval of a Replacement Plan the Commission does not permit or license the physical act of Artificial Recharge, and the Applicant is responsible for obtaining any and all necessary approvals for Artificial Recharge as may be required by federal, state, and local agencies. A well permit from the State Engineer is required for the construction of a well to be used solely for the purpose of Artificial Recharge.

5.6.4 Upon receipt of an application for a replacement plan, the staff shall review it to determine whether the application is complete under these rules, in order for the application to be published. If the plan is located within a ground water management district, a copy of the application shall be sent by the staff to the management district and the staff shall consider any comments or recommendations from the management district. If requested by the Applicant or any other party after publication of the application, Commission staff shall host a meeting including all interested parties to discuss the nature and scope of submitted and/or required modeling and to provide the Applicant feedback on its proposed modeling approach. If agreed to by all parties in the meeting, in order to encourage open discussion, communications in and related to the meeting shall be considered conduct or statements made in compromise negotiations within the ambit of C.R.E. 408, not discoverable, and not to be offered as evidence by any party in the course of the litigation. Staff may propose any additional terms and conditions or limitations which are necessary to prevent material injury and meet the requirements of these rules.

5.6.5 All rules and regulations referenced in this Rule 5.6 are available from the office of the Division of Water Resources, 1313 Sherman St., Room 821, Denver, CO 80203 and are available for public inspection during regular business hours. Certified copies of these materials shall be provided at cost upon request. This Rule does not contain any later amendments or editions of the materials.

5.7 Specific Yield Values Unless site specific information acceptable to the Commission is available, the Specific Yield for the various aquifers to be used in the evaluation of applications pursuant to these Rules is determined to be as follows. For all other aquifers, the Specific Yield will be determined from the best available information to the Commission

Aquifer	Specific Yield
Dawson (Upper and Lower)	20%
Denver	17%
Arapahoe (Upper and Lower)	17%
Laramie Fox Hills	15%
Lost Creek Alluvium	17%
Kiowa Bijou Alluvium	17%
Upper Black Squirrel Alluvium	20%
Upper Big Sandy Alluvium	20%
Upper Crow Creek - Fan Aquifer east of Crow Creek	20%
Upper Crow Creek Alluvium	20%
Northern High Plains - Ogallala Aquifer	15%
Northern High Plains - Ogallala and White River formations north of the Administrative Line (on Figure2).	25% for sand layers
Southern High Plains - Ogallala Aquifer	15%

5.8 Aquifer storage and recovery plans (ASR Plan). An ASR Plan is a plan to artificially recharge water into, store water in, and recover water from a designated aquifer. The source of water that is so recharged, stored, and recovered is referred to in this Rule as ASR Source Water.

5.8.1 Requirements for Approval. The Applicant has the burden of proving the adequacy of the plan in all respects. If the Applicant meets its burden of proof, the Commission shall grant approval of an ASR Plan to the Applicant which shall include any terms and conditions established by the Commission.

A. The ASR Plan must not cause any material injury to water rights.

B. The ASR Plan must not cause unreasonable impairment of groundwater quality

1. In making this determination, there shall be a rebuttable presumption of no unreasonable impairment of water quality if the ASR Source Water is from a source described in 5.8.1.B.1.a and b below.

a. If the ASR Source Water is subject to a Colorado Department of Public Health, Water Quality Control Division permit authorizing discharges into the aquifer that is not subject to a compliance order or enforcement actions, and the Applicant demonstrates compliance with the Water Quality Control Division groundwater discharge permit, using the relevant points of compliance established in the permit; or

b. If the ASR Source Water meets site specific standards contained in the Department of Public Health and Environment, Water Quality Control Commission's Regulation No. 42 (5 CCR 1002-42, effective June 30, 2018), or if there are not site specific standards, meets the standards set forth in the Department of Public Health and Environment, Water Quality Control Commission's Regulation No. 41 (5 CCR 1002-41, effective December 30, 2018), including all of the standards in Tables 1-4, and, in both instances, the point of compliance is the point at which the water is recharged into the aquifer. The Commission may consult with the Department of Public Health and Environment Water Quality Control Division in determining whether the source meets the standards of the relevant regulation.

2. Other methods of proving ASR Source Water will not cause unreasonable impairment of water quality may be proposed. The Commission may consult with the Department of Public Health and Environment Water Quality Control Division in determining whether the source will or will not cause unreasonable impairment of water quality

3. During any hearing, once the Applicant present evidence sufficient to make a prima facie showing of no unreasonable impairment of water quality, any party opposing the ASR Plan bears the burden of providing evidence of unreasonable impairment to water quality. If Commission Staff or a party opposing the ASR Plan provides contrary evidence of impairment, the Applicant has the ultimate burden of showing an absence of unreasonable impairment of water quality by a preponderance of the evidence.

C. The proposed ASR Plan, including uses of the recovered ASR Source Water, must not be speculative under Colorado law. The Applicant must demonstrate the plan's technical and financial feasibility and the Applicant's ability to complete the project.

D. The ASR Plan must be able to be operated and administered on an ongoing and reliable basis.

1. The ASR Source Water must be diverted from its source and delivered into the aquifer using a structure or method acceptable to the Commission. Delivery of the ASR Source Water to an aquifer by way of claiming credit for not diverting a proposed source of water out of an aquifer is not allowed.

2. Flow or other measurement devices must be installed, operated, and maintained on all wells or other structures artificially recharging water into and recovering water from the aquifer, and any other structure involved in the plan, unless the Commission finds that such devices would be unnecessary or impractical.

3. Water quality sampling and monitoring shall be done of the ASR Source Water at the point the ASR Source Water is introduced into the aquifer, at any other point of compliance, and at monitoring well(s), as required by the ASR Plan. The Commission may require a different location and frequency of water quality monitoring if the evidence indicates that a different location or frequency is more appropriate or feasible for the aquifer.

4. The Applicant must record, maintain and submit records of ASR Plan operations on forms acceptable to the Commission on a schedule determined by the Commission but no less than on an annual basis, which shall also be made available to the ground water management district and parties to the original ASR Plan proceedings on request without charge.

5. If a ground water model is submitted or required, then plan approvals shall include appropriate terms and conditions for updating and/or recalibration of any groundwater model(s) and a schedule for specified adjustments to the plan in accordance with the potential results of any such updated/recalibrated modeling. Plan approvals shall also include appropriate terms and conditions for ongoing water quality sampling and monitoring and monitoring of groundwater levels and a schedule for specified adjustments to the plan in accordance with the potential results of any ongoing sampling and monitoring.

E. A copy of the approved ASR Plan must be recorded by the Applicant in the clerk and recorder's records of the county in which any structure involved in the ASR Plan is located so that a title examination of the land on which such structure is located reveals the existence of the plan.

F. All ASR Source Water must be artificially recharged and stored in an aquifer. The aquifer must be capable of accommodating the water being recharged and stored without the water appearing within any surface or subsurface structure other than a well, and without contributing to evaporation or consumption by plants. Storage may be limited in order to maintain a minimum depth below the ground surface to avoid losses of stored water due to vegetative consumption, evaporation, or otherwise. Plan approvals may include terms and conditions for specified adjustments to the amounts of water that may be stored and limits on a minimum depth below the ground surface.

G. Except for plans proposed pursuant to Rule 5.8.2, the Applicant must demonstrate dominion and control over the ASR Source Water by showing the change in the water table and an ability to recover stored water within the ASR Boundary as described below. An Applicant is not required to own or have a legal right to use all of the land overlying the portions of the aquifer in which water will be stored. Water over which dominion and control is not maintained becomes designated ground water available to other appropriators within the basin. The following applies when determining whether or not dominion and control has been maintained.

1. The plan may contain methods or man-made structures to confine or restrict the water artificially recharged and stored in the aquifer from moving within the aquifer and/or mingling with the water previously existing in the aquifer.

2. Applicant has lost dominion and control over recharged and stored water that is pumped by wells other than the recovery wells identified in the plan.

3. An ASR Boundary concept that defines the area where water is recharged into, stored in and recovered from the aquifer.

a. The ASR Boundary shall be based upon the expected lateral extent of mounding resulting from proposed quantities and locations of recharge before any recovery of water.

b. Dominion and control has been lost on any water that flows across the ASR Boundary or is otherwise not available to the recovery wells. All recovery wells must be located within the ASR Boundary.

4. Consideration must be given to aquifer characteristics that result in the inability to recover amounts of water artificially recharged and stored in the aquifer.

H. Applicant must demonstrate that any ASR Source Water identified for use in the ASR Plan is legally available for recharge, storage, recovery and use pursuant to the plan prior to actually being recharged and stored in the aquifer under the ASR Plan.

1. For any ASR Source Water decreed by a water court in a tributary system, the legality of the use of the water shall be determined by consideration of the water court decree consistent with the provisions of the Water Rights Determination and Administration Act of 1969 ("1969 Act") and Colorado case law regarding decree interpretation.

2. Any determination concerning a 1969 Act source of water shall pertain only to the use of such right in the ASR Plan.

3. The Commission may approve an ASR Plan including a potential source of ASR Source Water that is not legally available for recharge, storage, recovery and use pursuant to the plan if, at the time the ASR Plan is approved, the Applicant:

(1) has demonstrated it has a legal right to use the ASR Source Water, as demonstrated by ownership or contract and that the ASR Source Water will not be used by any other person;

(2) has demonstrated a reasonable probability of obtaining such approvals as are necessary to make the ASR Source Water legally available for use in the ASR Plan. An Applicant seeking approval of such a potential source of ASR Source Water shall have the burden of proving the time, place, amount and quality of the supplies anticipated in a manner sufficiently detailed to permit the Commission, the ground water management district, and other parties the ability to assess the actual use of the ASR Source Water in the plan.

4. An ASR Plan approving the future use of a potential source of ASR Source Water not legally available at the time of the application shall include the following procedures requiring the Applicant to provide written notice to the Commission, the ground water management district, and all parties in the ASR Plan proceedings when that ASR Source Water has become legally available:

a. Applicant shall give at least sixty-three (63) days advance written Notice of Legal Availability of ASR Source Water ("Notice") to the Commission, the ground water management district, and the parties in the original ASR Plan proceedings, prior to recharging and storing such source in the aquifer, which shall identify:

(1) the amount available for recharge, storage, recovery and use pursuant to the ASR plan; and

(2) documentation as to how the ASR Source Water became legally available, including copies of all decrees, permits, findings and orders and determinations issued by the Commission and Courts.

b. Any person may provide written comments on the Notice, which shall be submitted to the Commission and provided to the ground water management district and all parties to the original ASR Plan proceedings within sixty-three (63) days after the date the Notice was submitted. Commission Staff shall consider any comments in determining:

(1) whether the requirements of 5.8.1.H.4.a are met; and

(2) any plan adjustments under the terms and conditions of 5.8.1.D.5 that are to be implemented for use of the ASR Source Water in the ASR plan. Applicant may not use the ASR Source Water until Commission Staff provides a written determination confirming the requirements of 5.8.1.H.4.a are met and setting forth any plan adjustments under 5.8.1.D.5 that are necessary for use of the ASR Source Water in the ASR Plan.

c. The ASR Plan shall state that any Notice must be served no later than six (6) years after the date of approval of the ASR Plan by the Commission or the Applicant's right to use the ASR Source Water shall expire. After the expiration, Applicant may only add the ASR Source Water to the ASR Plan by a new application to the Commission.

I. Once an ASR Plan has been approved, any proposed ASR Source Water not included in the ASR Plan approval shall only be added to the ASR Plan by a new application to the Commission. The Commission shall determine the terms and conditions under which the proposed ASR Source Water shall be added to the ASR Plan.

J. While the ASR Plan may contain methods or man-made structures to confine or restrict the ASR Source Water within in the aquifer and/or prevent mingling with the water previously existing in the aquifer or other aquifers in the Designated Basin, such methods or structures are not required.

K. ASR Source Water that is recovered under the plan does not have to consist of the same molecules as the ASR Source Water that was initially recharged and stored.

L. ASR Source Water that is recharged, stored and recovered retains the same classification (e.g. designated ground water, waters of the state, nontributary groundwater, not-nontributary ground water) as the ASR Source Water had prior to being recharged and stored.

M. ASR Source Water that is recharged, stored and recovered remains subject to applicable provisions of the decrees and/or permits regarding types, manner and place of use under which it was originally diverted, the terms and conditions of the ASR Plan, and applicable Commission rules. Subsequent withdrawal of such water by Applicant's recovery wells under an ASR Plan is not subject to the flow rate, volumetric limits and three-year modified banking provision of Rule 7.11 contained in the original well permit or decree.

N. Recharge or recovery wells used in an ASR Plan must have their producing zone completed in the single aquifer in which the water is intended to be stored. An ASR Plan must operate in only one aquifer.

O. ASR Plans shall include terms and conditions to prevent material injury to water rights or to prevent unreasonable impairment of the water quality.

P. Ground water management districts may have additional rules governing the operation of Commission approved ASR Plans and may require compliance with the District rules.

5.8.2 ASR Plans in aquifers for which appropriations are determined pursuant to Rule 5.3 or 5.4 have the following requirements for approval, in addition to those contained in 5.8.1.

A. Definitions

1. "Contiguous Extraction Area" means an area within an aquifer for which allocations are determined pursuant to Rule 5.3 or 5.4 from which the Applicant has the right to withdraw the naturally occurring water and from which the Applicant is proposing to recover ASR Source Water. The Applicant's right to withdraw the naturally occurring water through overlying land ownership, consent of the landowner as described in Rules 5.3 or 5.4, or other means, must be continuous throughout the contiguous extraction area. The land area overlying the contiguous extraction area need not be a single legal tract of land.

2. "Remote Recovery Well" means the recovery of ASR Source Water from a well other than a well through which the volume of water to be recovered was injected or recharged.

B. No recovery well shall be located closer than one (1) mile to any point of contact between any natural stream including its alluvium and the outcrop/subcrop of the aquifer from which the ASR Source Water would be recovered.

C. Recovery from a Confined Aquifer.

1. Recovery of ASR Source Water from a confined aquifer within a designated basin shall be through the same well through which the water was recharged or shall be through a Remote Recovery Well located within the same Contiguous Extraction Area, but in no case shall the Remote Recovery Well be located more than five (5) miles from the farthest artificial recharge well within the same Contiguous Extraction Area. If, prior to or during recovery, the confined aquifer becomes an unconfined aquifer between any recharge well and the Remote Recovery Well, as determined by the Commission, recovery of the ASR Source Water by the Remote Recovery Well shall be subject to the provisions of Rule 5.8.2.D unless an exception is requested and granted by the Commission. The exception request shall include an analysis of continued operation of the Remote Recovery Well upon the change from a confined aquifer to an unconfined aquifer and the potential for material injury to all rights of record in the State Engineer's office allowing the withdrawal of water from the same aquifer owned by other parties, which are located within one (1) mile of the Remote Recovery Well, or over a larger distance if requested by the Commission. The analysis shall consider the hydraulic gradient between the recharge wells and the Remote Recovery Well in the unconfined aquifer state. Requirements for submittal, publication and hearings of exception requests shall be the same as for variance requests as described in Rules 11.2.2 through 11.2.5 . The Commission may also require the Applicant to provide specific notice of the exception request to the owners of those water rights identified in the above referenced analysis. If the exception request is granted, the Commission may require the exception request be repeated at a future specified date based on potential changes to unconfined aquifer conditions.

2. No Remote Recovery Well withdrawing ASR Source Water from a confined aquifer shall be located within the cylinder of appropriation, as calculated pursuant to Rule 4.2.15, for any existing or permitted well subject to Rule 5.3.3, owned by other than the Applicant, and authorized to withdraw water from the same aquifer, without the written permission of the owner of the well.

D. Recovery of ASR Source Water from an unconfined aquifer shall be through the same well through which the water was recharged, or shall be through a Remote Recovery Well located down hydraulic gradient from the recharge well and within the same Contiguous Recovery Parcel, but in no case shall the Remote Recovery Well be located more than one thousand (1,000) feet from the farthest recharge well.

E. The maximum amount of ASR Source Water that may be recovered from an aquifer through any one recovery well in any one calendar year shall not exceed five (5) times the maximum amount of water recharged into that aquifer in any one calendar year, and in no case shall the amount of water recovered exceed the total amount of water recharged into that aquifer less any amounts previously recovered.

F. ASR Source Water may be retained in the aquifer indefinitely by the person who has artificially recharged the water. Nothing in these rules shall limit the right of any person to withdraw naturally occurring ground water which has been "banked" pursuant to Rule 5.3.2.5.

5.8.3 Form of ASR Applications.

A. All applications for ASR Plans must contain the following:

1. Name, mailing address, email address and telephone number of Applicant(s).

2. Name of designated basin, ground water management district (if any), and aquifer in which the plan will operate.

3. Evidence that the plan will not injure other water rights.

4. A detailed description of the plan and its operation, including the following.

a. A general description of the ASR project location and ASR Boundary.

b. The purpose of the ASR Plan.

c. The description of the ASR Source Water (see Rule 5.8.3.A.8).

d. The description of how the ASR Source Water is delivered to the ASR project for recharge.

e. The method, location, timing, and amount of ASR Source Water being recharged into the aquifer including without limitation identification of the structures that will recharge the ASR Source Water, such as by recharge through a well or through a pond.

f. The maximum volume of water that would be stored in the aquifer at any one time.

g. Whether the Applicant proposes to use structures or methods to restrict or direct the underground flow of the water.

h. The method, location, timing, and amount of recovery of the ASR Source Water, including without limitation identification of the structures that will recover the stored water, legal descriptions of their locations, and identification and copies of all decrees, permits, findings and orders and determinations issued by the Commission and Courts involving the structures.

i. The proposed use of the ASR Source Water after it is recovered and where the use will occur if the use is not on the site of the ASR project.

j. The proposed plan to monitor both water quantity and water quality.

k. The approximate cost of the ASR project and the approximate date construction will begin and end.

l. An estimate of the amount of ASR Source Water that will be pumped by wells other than the recovery wells identified in the plan, and an explanation of how that estimate was made.

m. An estimate of the amount of ASR Source Water over which the Applicant will lose dominion and control, and an explanation of how that estimate was made.

n. Proposed terms and conditions required to prevent injury to other water rights.

5. If required by Commission Staff, the Applicant shall submit a ground water model evidencing:

(a) that no material injury to vested rights or unreasonable impairment of water quality will result from operation of the plan,

(b) maintenance of dominion and control over the water,

(c) the timing and amount of recharged and stored water available to permitted wells other than the recovery wells identified in the plan.

6. Maps (either USGS topographic base map or other base map as appropriate) showing the following information:

a. A depiction of the project location and ASR Boundary, including a depiction of land owned by the Applicant within the boundaries.

b. The locations of all structures involved in the ASR Plan, including all recharge and recovery wells, recharge ponds and other structures involved in recharging and recovering the ASR Source Water, all structures involved in delivering the ASR Source Water to the project location, and all structures involved in delivering the recovered ASR Source Water to its end use.

7. The amount of storage space available in the aquifer within the ASR Boundary, how that amount was calculated, the amount of that available storage space the ASR Plan will utilize, the depth to water within the ASR Boundary prior to operation of the ASR Plan and the projected minimum depth to water during operation of the plan.

8. A detailed description of the physical and legal source of all proposed ASR Source Water, including without limitation identifying the amount of water available from each source, and providing copies of all decrees, permits, findings and orders and determinations issued by the Commission and Courts. If a proposed source of ASR Source Water is not legally available for storage, recovery, and subsequent use in the plan at the time the application is submitted, the Applicant must identify any applications it has or is submitting, or actions it has or is taking, to make the water legally available. Applicant must also provide information demonstrating the Applicant's right to use all proposed ASR Source Water and that the ASR Source Water will not be used by any other person.

9. Evidence that the plan does not cause unreasonable impairment of ground water quality. Such evidence shall include water quality for the source water and the water quality of the receiving aquifer unless 5.8.1.B.1.a applies.

10. Name(s) and address(es) of owner(s) or reputed owner(s) of the land upon which structures that recharge and withdraw water involved in the plan are located. The Applicant must notify these owners that the Applicant is applying for the ASR Plan, and provide proof to the Commission that the Applicant has done so, no later than 14 days after filing the application. Applicant may rely on the records maintained by the applicable County, including records available online, to determine the owner(s) or reputed owner(s), unless Applicant has actual knowledge or information of others not identified in said records.

11 Information regarding other water rights diverted from the structures involved in the plan.

12. A summary of the application for publication. If required by the Commission, the summary must be submitted in an electronic form that can be provided to the newspaper in which publication occurs.

B. All ASR applications pursuant to Rule 5.8.2 must contain the following:

1. The items required by Rule 5.8.3.A.

2. A report summarizing the hydrological conditions in the aquifer, including, but not limited to, evidence as to whether the aquifer is confined or unconfined at the artificial recharge well(s) and any Remote Recovery Well(s) and any location between those wells, static water levels, and aquifer hydraulic gradient. The report must identify all large capacity wells of record in the State Engineer's office allowing the withdrawal of ground water from the aquifer within one (1) mile of the proposed recovery site(s) that are subject to Rule 5.3.3, and identify the cylinder of appropriation of those wells as calculated pursuant to Rule 4.2.15.

5.8.4 A well used for recovery of ASR Source Water pursuant to an ASR Plan must be permitted for such use by the Commission. The Commission may permit wells for recovery that are not otherwise permitted for withdrawal of designated groundwater.

5.8.5 A well permit from the State Engineer is required for the construction of a well to be used solely for the purpose of Artificial Recharge or injection. Other than approval of an ASR Plan, the Commission does not permit or license the physical act of Artificial Recharge or storage. The Applicant is responsible for obtaining any and all necessary approvals to allow the physical act of Artificial Recharge or storage as may be required by federal, state, and local agencies.

5.8.6 Upon receipt of an application for an ASR Plan, the staff shall review it to determine whether the application is complete under these rules in order for the application to be published. If the plan is located within a ground water management district, a copy of the application shall be sent by the staff to the management district and the staff shall consider any comments or recommendations from the management district. If requested by the Applicant or any other party after publication of the ASR application, Commission staff shall host a meeting including all interested parties to discuss the nature and scope of submitted and/or required modeling and to provide the Applicant feedback on its proposed modeling approach. If agreed to by all parties in the meeting, in order to encourage open discussion, communications in and related to the meeting shall be considered conduct or statements made in compromise negotiations within the ambit of C.R.E. 408, not discoverable, and not to be offered as evidence by any party in the course of the litigation. Staff may propose any additional terms and conditions or limitations which are necessary to prevent material injury to water rights and meet the requirements of these rules.

5.8.7. All rules and regulations referenced in this Rule 5.8 are available from the office of the Division of Water Resources, 1313 Sherman St., Room 821, Denver, CO 80203 and are available for public inspection during regular business hours. Certified copies of these materials shall be provided at cost upon request. This Rule does not contain any later amendments or editions of the materials.

5.9 Well Completion - All wells must be completed in accordance with the Rules and Regulations of the Board of Examiners of Water Well Construction and Pump Installation Contractors for the State of Colorado, 2 CCR 4022 (original effective date September 1, 2016 and as amended through July 1, 2018).

5.10 Deviation from Permitted Location for New Wells - The following distances are the allowable variation from the permitted site in each aquifer or basin. Wells completed farther than the specified distance from the permitted location shall be deemed to be in violation of permit conditions. If a Management District's Rules and Regulations specify a lesser distance for a new or replacement well, the lesser distance shall apply. For Bedrock Aquifer wells, well to well minimum spacing requirements of Rules 5.3.7.1 and 5.4.11 shall also apply.

Aquifer	Allowable Variation from the Permitted Well Site
Bedrock Aquifers	200 feet
All other aquifers	300 feet

5.11 Storm Water Detention and Infiltration Facilities and Post-Wildland Fire Facilities

5.11.1 A "storm water detention and infiltration facility" means a facility that is operated solely for storm water management and:

A. Is owned or operated by a government entity or is subject to oversight by a governmental entity;

B. Continuously releases or infiltrates at least ninety-seven percent of all of the water from a rainfall event that is equal to or less than a five-year storm within seventy-two hours after the end of the rainfall event;

C. Continuously releases or infiltrates all of the water from a rainfall event greater than a five-year storm as quickly as practicable, but in all cases releases or infiltrates at least ninety-nine percent of all of the water from the rainfall event within one hundred twenty hours after the end of the rainfall event, and:

D. Operates passively and does not subject the storm water runoff to any active treatment process.

5.11.2 A "post-wildland fire facility" means a facility that is:

A. Not permanent, where a person who installed or operated a post-wildland fire facility ensures that the facility is removed or rendered inoperable after the emergency conditions create by the wildfire no longer exist;

B. Designed and operated solely for the mitigation of the impacts of wildland fire events; and

C. Designed and operated to minimize the quantity of water detained and the duration of the detention of water to the levels necessitated by public safety and welfare.

5.11.3 Water detained or released by a storm water detention and infiltration facility or post-wildland fire facility shall not be used for any purpose, including, without limitation, by substitution or exchange, by the entity that owns, operates, or has oversight over the facility or that entity's assignees, and is available for use in Priority after release or infiltration.

A. An entity shall not release water detained by a storm water detention and infiltration facility or post-wildland fire facility for the subsequent diversion or storage by the entity that owns, operates, or has oversight over the facility or that entity's assignees.

B. The operation of a storm water detention and infiltration facility or post-wildland fire facility is not the basis for a Water Right, credit, or other right to or for the use of water.

5.11.4 Storm water detention and infiltration facilities in existence on January 14, 2020, that are operated in compliance with Rules 5.11.1 and 5.11.3, and post-wildland fire facilities that are operated in compliance with Rules 5.11.2 and 5.11.3 do not cause material injury to vested Water Rights.

5.11.5 An entity that owns, operates, or has oversight for a storm water detention and infiltration facility constructed after January 14, 2020 shall, prior to operation of the facility:

1) publish notice of the location and approximate surface area at design volume of the facility and a statement confirming that the facility has been designed to comply with Rules 5.11.1 and 5.11.3 ,in a newspaper of general circulation in each of the counties in which the facility is located, once each week for two successive weeks, at the entity's expense; and

2) provide notice of the location and approximate surface area at design volume of the facility and the data that demonstrates that the facility has been designed to comply with Rules 5.11.1 and 5.11.3, to all parties on the Designated Basins Publications Notification List maintained by the Division of Water Resources.

5.11.6 Operation of a storm water detention and infiltration facility constructed after January 14, 2020 in compliance with Rules 5.11.1 and 5.11.3 creates a rebuttable presumption that the facility does not cause material injury to vested Water Rights.

A. The holder of a vested Water Right may bring an action before the Commission to determine whether the operation of a storm water detention and infiltration facility constructed after January 14, 2020 has caused material injury to that Water Right.

B. The holder of a vested Water Right who brings an action under Rule 5.11.6.A may rebut the presumption established by Rule 5.11.6 with evidence sufficient to show that the operation of the storm water detention and infiltration facility has caused material injury to the Water Right by modifying the amount or timing of water that would have been available for diversion by the Water Right absent the operation of the facility under hydrologic conditions that existed as of the Water Right's Priority date, excluding flows resulting from development of impervious surfaces within the drainage that created the need for the Storm Water Detention and Infiltration Facility.

5.11.7 No permit shall be required to be issued by the Commission for a storm water detention and infiltration facility that is operated in compliance with Rules 5.11.1 and 5.11.3, or a post-wildland fire facility that is operated in compliance with Rules 5.11.2 and 5.11.3 . No Replacement Plan shall be required for a storm water detention and infiltration facility or a post-wildland fire facility unless the Commission determines that the facility causes material injury to vested water rights.

5.11.8 Nothing in this Rule 5.11 alters, amends, or affects any otherwise applicable requirement to obtain a state or local permit for a storm water detention and infiltration facility constructed on or after January 14, 2020.

2 CCR 410-1-5

42 CR 24, December 25, 2019, effective 1/14/2020

45 CR 17, September 10, 2022, effective 9/30/2022