2 Colo. Code Regs. § 410-1-7

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

Rule 2 CCR 410-1-7 - CHANGE OF RIGHTS TO DESIGNATED GROUND WATER

7.1 Applicability and Exceptions

7.1.1 This rule applies to all Changes of Water Rights to designated ground water to be processed pursuant to Section 37 90 111(1)(g), C.R.S. A change can be approved only upon such terms and conditions as will not cause material injury to the vested rights of other appropriators. It shall be the Applicant's burden to demonstrate that the above criteria are met. Also, the Commission may require the Applicant to provide for any administration necessary to ensure compliance with the terms and conditions of any approval under Rule 7.

7.1.2 A change request may consist of but is not limited to the following:

A. Change of well location greater than the distance that was authorized for a replacement well as set forth in Rule 6.2;

B. Change of description of irrigated acreage without an increase in the number of acres irrigated;

C. An increase in the number of acres to be irrigated above the number of acres permitted;

D. A change to commingle two or more wells;

E. A change of type of use (with or without export from a designated basin);

F. A change of the volume of annual Appropriation;

G. An increase in the pumping rate in gpm.

H. A permit may be issued to change an existing well to a Republican River Compact Compliance Well as part of an application for Change of Water Right pursuant to these Rules, so long as the well would be in compliance with:

(a) paragraph 3.B.1.k. of the Final Settlement Stipulation filed in Kansas v. Nebraska and Colorado, No. 126 Original; and

(b) Rule 7.7 of these Rules.

7.1.3 For a right to use designated ground water on the basis of the ownership of the Overlying Land within the Denver Basin Aquifers pursuant to section 37-90-107(7)(a), C.R.S., and Rule 5.3, or other Bedrock Aquifers pursuant to Rule 5.4 (Allocation based rights), in determining whether a Change in Water Right results in material injury to the vested water rights of others, a Historical Withdrawal and depletion analysis is not required. Rather, the amount of designated ground water available to the changed right shall be based on the withdrawal allowed by the well permit or Determination of Water Right that quantified withdrawals available under the right.

7.2 Publication - Except as noted in this section, applications for Changes of Water Rights to designated ground water shall be published in accordance with section 37 90 112, C.R.S. The Staff shall act upon an application, or a resubmitted application, within sixty days of the receipt thereof. An incomplete application shall be returned to the Applicant with an explanation; this shall be deemed action by the Staff. An application that is found to be complete and requires a publication, shall be submitted to the appropriate newspaper for publication; which shall also be deemed action by the Staff. Publication does not require a favorable Staff finding and no such indication shall be made. The publication shall indicate (a) the name of the Applicant, (b) the well permit number, presently permitted annual volume, presently permitted pumping rate, presently permitted well location, and presently permitted irrigated land or other appropriate description of type of use for each well included within the application, and (c) a general statement describing the changes requested by the Applicant. The publication shall also indicate the deadline and location for filing any objections to the application.

7.2.1 Applications for a temporary change of use, to overcome an emergency situation as described in Rule 7.13.2, for a time period not to exceed ninety days, do not have to be published if Staff determines the change will not cause material injury to the vested rights of other appropriators.

7.3 Change of Well Location - In determining whether a proposed new well location will cause material injury to the vested rights of other appropriators, the following factors shall be considered for wells other than those wells covered by Rule 6 and Rule 7.3.6.

7.3.1 The Applicant shall be required to provide evidence of Historical Withdrawals and depletions of designated ground water from the well, in accordance with Rule 7.10 . In addition to crop data, Applicant may be required to submit a wire to water pump efficiency test and power use data. Terms and conditions shall be imposed to prevent an increase over historical depletion to the aquifer.

7.3.2 The proposed new location may not be at a site where there is a Saturated Aquifer Thickness greater than, or a rate of water level decline less than, at the currently permitted location at the time when the application is filed, unless (1) the difference in Saturated Aquifer Thickness or rate of water level decline will not facilitate an increased use of water; or (2) restrictive terms and conditions can be imposed to ensure that the new location will not result in greater future water availability (e.g. future pumping limitation less than the established historical consumptive use); or (3) the change in location is accompanied by a change in use for compact compliance purposes. The determination of whether there is greater Saturated Aquifer Thickness or a lesser rate of water level decline shall be made solely on the basis of existing data that is available when an application if filed, and applicants shall not be required to obtain new data for the purpose of this analysis.

7.3.3 No proposed new location shall place a well closer to the permitted location of an existing well than the minimum distance required for new wells under Rule 5 unless specifically approved by the Commission, or unless the owner of the existing well gives a Waiver of Claim Injury in writing.

7.3.4 For the Northern High Plains Designated Ground Water Basin, a request to change the location of any well in excess of 300 feet from the currently permitted location shall be denied, unless there is water available for Appropriation at the proposed new location using the methodology described in Rule 5.2.2.

7.3.5 For all designated ground water basins other than the Northern High Plains Designated Ground Water Basin, a request to change the location of any well in excess of 1/2 mile from the currently permitted location shall be denied.

7.3.6 A change in the permitted location of a Water Right to the original historical site in the field of the well that originated the Water Right may be approved by the Commission without any other requirements of Rule 7.3 under the following conditions.

A. The historical site in the field is the site of a well that was constructed prior to being issued a well permit, with the well subsequently being recorded with the office of the State Engineer; or

B. The historical site in the field is the site of a well that was constructed subsequent to issuance of a well permit, and the aquifer was open for new Appropriation at the time the well permit was issued, and the original historical site in the field is either no closer to the permitted location of any well existing at the time the well permit was issued than the minimum distance required for new wells under Rule 5 or a Waiver of Claim of Injury is obtained from the owner of the well existing at the time the well permit was issued.

7.3.7 The well must have a totalizing flow meter, or have an alternate method of measurement of withdrawals as approved by the Commission.

7.3.8 The Allowed Maximum Annual Amount of Withdrawal from a well shall be administered by the three year modified banking provisions of Rule 7.11.

7.3.9 The Well Owner must have a contract with the local Ground Water Management District, Commission, or other person or entity acceptable to the Commission, to provide assistance with administration of the changed water right as may be required by the approval of the change.

7.4 Change of Description of Irrigated Acres (No Increase in Acreage). - An Applicant requesting a change of description of irrigated acres may elect to have the request approved under the criteria of either Rule 7.4.1 or Rule 7.4.2.

7.4.1 A change of description of irrigated acres may be approved if the change does not result in an increase over the historical average number of acres irrigated by the well. The historical average number of irrigated acres shall be based on ten or more most recent years. It is the burden of the Applicant to demonstrate the historical average number of acres irrigated, but the Commission may use all available information to establish the historical average number of acres irrigated.

7.4.1.1 No credit toward the historical average number of acres shall be given for historical irrigation of a number of acres which exceeds the number of permitted acres.

7.4.1.2 No credit toward the historical average number of acres shall be given for historical irrigation of acreage that is not within the permitted description of irrigated acreage, unless the description and number of historically irrigated acres (but not exceeding the number of permitted acres) are those under which the irrigation right was established by placement to Beneficial Use and have been continued to be irrigated since the irrigation right was established, and no change in actual irrigated acreage is occurring.

7.4.1.3 If in any given year or years the land permitted to be irrigated by a well was placed into a federal set aside or conservation reserve program resulting in limited or no irrigation, the historical average number of acres irrigated may be computed by excluding such year(s) from the average. Annual reporting to the Commission is not required to take advantage of the provisions of this sub-rule.

7.4.1.4 Irrigation occurring during the calendar year 2018 and during any successive calendar year may be excluded in computing historical average number of acres irrigated provided at least ten years of water use information is available to compute historical use and provided a written request to exclude water use for any given calendar year is received by the Commission by May 1 of that calendar year. This written request must be on a form prescribed by the Commission. To avoid having Applicants pick and choose water use years during this period to maximize the average historical number of irrigated acres, a request to exclude water use for any year once submitted cannot be withdrawn.

7.4.1.5 The annual amount of water allowed to be withdrawn for use after the change may not be more than the product of (the number of acres allowed to be irrigated by the change of description) times (the acre-feet per acre rates required for Appropriations for new wells by Rule 5.5).

7.4.2 A change of description of irrigated acres may be approved if the change does not result in an increase over the historical depletion of the aquifer by the well. The future average annual withdrawal from a well shall not exceed the average annual legal Historical Withdrawal by the well and may be less than this amount to ensure no increased depletion of the aquifer, i.e. to compensate for any reduction in return flows back to the aquifer.

7.4.2.1 It shall be the burden of the Applicant to demonstrate the Historical Withdrawal of water and the resulting depletion to the aquifer. The provisions of Rule 7.10 shall apply to determine the Historical Withdrawal and depletion by a well.

7.4.2.2 The well must have a totalizing flow meter installed, or have an alternate method of measurement of withdrawals as approved by the Commission.

7.4.2.3 The Allowed Maximum Annual Amount of Withdrawal from a well shall be administered by the three year modified banking provisions of Rule 7.11.

7.4.2.4 The Well Owner must have a contract with the local Ground Water Management District, Commission, or other person or entity acceptable to the Commission, to provide assistance with administration of the changed water right as may be required by the approval of the change.

7.4.3 Applications filed for a change of description of irrigated acres shall be deemed as an application for rotational acres to be evaluated under Rule 7.5 if the permit has already been granted a change of description of acres by the Commission twice within the last four years.

7.5 Increase in Permitted Irrigated Acreage (Including Rotation of Acres)

7.5.1 Application shall be on a form prescribed by the Commission. No application shall be considered complete without a statement from the Applicant agreeing to comply with metering and administrative requirements set forth in the application.

7.5.2 Implementing the practice of rotational acres shall be considered an increase in the permitted irrigated acreage and subject to the requirements of Rule 7.5.

7.5.3 An increase in acreage allowed to be irrigated shall not result in an increase over the amount of designated ground water historically depleted by the well from the aquifer. The future average annual Appropriation allowed from a well under this Rule shall not exceed the average legal Historical Withdrawal of water from the well and may be less than the Historical Withdrawal to ensure no increased depletion of the aquifer, i.e., to compensate for any reduction in return flows back to the aquifer. The burden of proof for the application shall rest with the Applicant. The provisions of Rule 7.10 shall apply to establish the Historical Withdrawal and depletion by a well.

7.5.4 The Allowed Maximum Annual Amount of Withdrawal from a well shall be administered by the three-year modified banking provisions of Rule 7.11.

7.5.5 Administrative Conditions - The following conditions are necessary in order to control and monitor designated ground water withdrawals when operating under an approval of expanded acres:

7.5.5.1 All wells approved for expanded acres shall have a flow meter installed and approved by the Commission or its authorized agent. Any alternate method or device for measurement instead of a flow meter must be approved by the Commission. A backup meter shall be kept on hand unless a specific backup water measurement program is approved by the Staff.

7.5.5.2 No person shall begin the irrigation of expanded acres until the Well Owner has signed a contract with the Management District or the Commission to pay the actual cost of administration, or until the Well Owner has contracted with a person or entity acceptable to the Commission to perform the same services as would otherwise be performed by the Commission, and the Commission determines, after consultation with the District, that the terms of the said contract provide for the required administration of the expanded acres.

7.5.6 As of September 30, 2022, the effective date that these Rules were re-amended as set forth in Rule 14 below, a change of water right that provides for an increase in permitted irrigated acreage may no longer be approved allowing an irrigation well to operate under the terms of the original permit as it existed prior to the change rather than the terms under which the increase in permitted irrigated acres was approved, as such approvals may have been allowed under previous versions of the Rules. Notwithstanding the foregoing, nothing in this Rule 7.5, as re-amended on September 30, 2022, shall alter, amend, or modify any approvals for an increase in permitted irrigated acreage that allowed a changed water right to operate under the terms of the original permit as it existed prior to the change, made pursuant to previous versions of the Rules.

7.5.6.1 Changes of water rights providing for an increase in permitted irrigated acreage, that were approved under versions of the Rules prior to the effective date these Rules as re-amended on September 30, 2022, that allow a water right to irrigate increased acres under terms as stated in the approval, and also allow the water right to irrigate the acres under the original permit with the annual appropriation described in the original permit, but do not clearly state that the ability to alternate between such operations may occur on a year-to-year basis, shall be understood to allow the water right to alternate between such operations on a year-to-year basis.

7.5.6.2 Changes of water rights providing for an increase in permitted irrigated acreage that (i) were approved under versions of the Rules in existence prior to the effective date these Rules were re-amended on September 30, 2022, (ii) allow a water right to irrigate increased acres under terms as stated in the approval, (iii) allow a water right to irrigate the acres under the original permit with the annual appropriation described in the original permit, and (iv) do not contain express conditions contrary to the following operations, shall be understood to allow the water right to operate under the original permit under the following conditions:

(1) that year's well pumping is limited to the maximum annual permitted Appropriation of its original permit;

(2) said water is applied only to the land as appropriated under its original permit;

(3) no water from the well is used elsewhere;

(4) the well is not in violation of its permit and other approval conditions;

(5) any past withdrawals in excess of the approved limitations have been remedied to the Commission's satisfaction;

(6) if the change limited annual withdrawals on the basis of three-year modified banking under the increased permitted irrigated acres authorization, such operation will be cause for reinitiating the three-year modified banking program to the first year situation with no credit for real or claimed carryover;

(7) and if the change limited annual withdrawals on the basis of a three year rolling average under the increased permitted irrigated acres authorization, such operation will be cause for reinitiating the three rolling average to the first year situation with no credit for real or claimed carryover.

7.6 Commingling

7.6.1 Commingling of water from two or more wells may be allowed by the Commission to achieve greater efficiency of water use, to encourage new irrigation methods, to facilitate water availability during temporary shutdown of a well, or for any other purpose that enhances the Beneficial Use of water without causing material injury to vested rights.

7.6.2 A commingling request may be approved only upon such terms and conditions as will prevent material injury to the vested rights of other appropriators.

7.6.3 The withdrawal from each individual well may not exceed its permitted annual acre-feet Appropriation and may not result in an increase over the historical depletion of the aquifer by the well. The future average annual withdrawal from a well under this rule shall not exceed the legal average annual Historical Withdrawals by the well and may be less than this amount to ensure no increased depletion of the aquifer when considering any reduction in return flows back to the aquifer. It shall be the burden of the Applicant to demonstrate the legal average annual Historical Withdrawal of designated ground water and the resulting depletion to the aquifer. The provisions of Rule 7.10 shall apply to determine the Historical Withdrawal and depletion by each individual well.

7.6.4 The future Allowed Maximum Annual Amount of Withdrawal from each well shall be administered by the three-year modified banking provisions of rule 7.11.

7.6.5 The commingled acreage must be made up of the acreages individually permitted to each individual well.

7.6.6 Commingling shall not be allowed where the intent or effect is to perfect the water right of a well by means of diversions through another well.

7.6.7 All wells approved for commingling shall have a totalizing flow meter, or an alternate method or other measuring device acceptable to the Commission, installed at their individual wellhead.

7.6.8 The owner of the wells must have a contract with the local Ground Water Management District, Commission, or other person or entity acceptable to the Commission, to provide assistance with administration of the changed water right as may be required by the Commission's approval of the commingling request.

7.7 Change of Type of Use, or a Change in Place of Use Other than a Change of Description of Irrigated Acres under Rule 7.4 (With or Without Export from a Designated Basin)

7.7.1 A change of type of use, or a change in place of use other than a change of description of irrigated acres under Rule 7.4, including a change in type or place of use involving export out of a designated basin shall not result in an increase over the historical depletion of the aquifer by the well. The future average annual withdrawal from a well under this Rule shall not exceed the average annual legal Historical Withdrawal by the well and may be less than this amount to ensure no increased depletion of the aquifer, i.e. to compensate for any reduction in return flows back to the aquifer. Where a change in the season of use will result in an increased ability to withdraw water, conditions or limitations shall be imposed to prevent the changed season of use from resulting in an increase in the withdrawal of water over what would occur during the original season of use under present and future aquifer conditions at the original point of withdrawal.

7.7.2 It shall be the burden of the Applicant to demonstrate the Historical Withdrawal of water and the resulting depletion to the aquifer. The provisions of Rule 7.10 shall apply to determine the Historical Withdrawal and depletion by a well.

7.7.3 The permitted average annual withdrawal from a well shall be controlled by the three year modified banking provisions of Rule 7.11.

7.7.4 Change of Use Involving Export from a Ground Water Management District

7.7.4.1 In consideration of the authority granted to Management Districts pursuant to section 37-90-130(2)(f), C.R.S., if the requested change involves export of water out of the boundary of a Designated Ground Water Management District, the Commission shall request a written recommendation from the District and shall limit the approval of any export out of the District to an annual acre-feet amount not to exceed the amount approved for export by the District. A District may request that the Commission evaluate the matters described in Rules 7.7.1, 7.7.2, and 7.7.3 prior to the District conducting its formal review of the export request, and if so requested, the Commission Staff shall provide a preliminary evaluation to the District (which evaluation shall not constitute final action by the Commission on any portion of the change application), and then the Commission shall wait for the outcome of the District's formal review of the export request before taking final action on the change application. After receiving the District's final decision on the export request, the Commission shall take final action on the change application and shall limit any approval to an annual acre-feet amount not to exceed the amount approved for export by the District.

7.7.4.2 However, if the District requests deferral, or has a rule deferring its consideration of the export issue until after the Commission has approved the change application, the Commission shall take final action on the change application prior to District approval of an amount for export, in which case the Commission's approval shall limit the future use to an amount not to exceed the legal historical depletion of the aquifer, and shall include a condition requiring subsequent District approval pursuant to section 37-90-130(2)(f), C.R.S., before any actual export may occur.

7.7.4.3 Any Commission approval under this Rule 7.7.4 shall also be limited by the provisions of Rule 7.7.1, 7.7.2 and 7.7.3.

7.7.5 Commission approval of a change of type or place of use initiates the Change of Water Right. Upon approval of a change in type or place of use, use of the right becomes subject to the right as changed, including any terms and conditions imposed by the approval. Upon approval of the change, the right may only be used for the same type of use or at the same place of use as before the change if the approval allows such use in a manner that prevents an increase over the historical depletion of the aquifer.

7.8 Change of Annual Volume of Appropriation - A change of permitted annual volume of Appropriation that does not exceed the current permitted amount, or the Historical Withdrawal and depletion to the aquifer as determined under Rule 7.10, may be allowed within the limits of other permit parameters and provided that no material injury occurs to the vested rights of other appropriators. For irrigation use the Appropriation shall not exceed the current allowable duty of water (acre-feet/acre), as determined under Rule 5.5.

7.9 Increase in Pumping Rate in GPM

7.9.1 An increase in pumping rate for a well may be allowed if such a change does not materially injure the permitted pumping capabilities of other wells and does not result in increased withdrawals from or depletion of the aquifer, as determined under Rule 7.10, on an annual basis. Where necessary, conditions or limitations shall be imposed to prevent any increase over the historical depletion of the aquifer.

7.10 Determining Historical Withdrawal and Depletion

7.10.1 It shall be the burden of the Applicant to determine the average annual Historical Withdrawal and depletion by a well. The evidence required to determine Historical Withdrawal and depletion may include irrigation system and pump efficiency tests, information on pump and irrigation method(s), flow meter readings and water consumption records where available, power and crop data, and such other data as is determined by the Staff to be necessary. Ten or more most recent consecutive years of records shall be submitted unless the Applicant can show good cause why the data cannot be supplied.

7.10.2 No credit toward historical use shall be given for designated ground water used on acreage which exceeds the number of permitted acres, or for any other water use not authorized by the permit.

7.10.3 The annual Historical Withdrawal of designated ground water computed for any given year shall not exceed the permitted annual Appropriation.

7.10.4(a) If in any given year or years the land permitted to be irrigated by a well was placed into a federal set aside or conservation reserve program resulting in limited or no irrigation, average historical use may be computed by excluding such year(s) from the average. Annual reporting to the Commission is not required to take advantage of the provisions of this subrule (a).

7.10.4(b) Water diversion during the calendar year 1997 and during any successive calendar year may be excluded in computing average annual historical use provided at least ten years of water use information is available to compute historical use and provided a written request to exclude water use for any given calendar year is received by the Commission by May 1 of that calendar year. This written request must be on a form prescribed by the Commission. To avoid having Applicants pick and choose water use years during this period to maximize the estimate of average annual historical use, a request to exclude water use for any year once submitted cannot be withdrawn.

7.10.5 Where the Historical Withdrawal cannot be established using power records or flow meter records, the average annual Historical Withdrawal shall be determined considering the following. The Commission shall make the final decision on the reasonableness of the following estimates.

(a) for an irrigation well, the allowable average annual Historical Withdrawal shall be limited to the historical average of net crop irrigation requirement divided by irrigation efficiency. The net crop irrigation requirement is equal to total potential Crop Consumptive Use (as determined by use of the Modified Blaney-Criddle method or other Crop Consumptive Use estimate method acceptable to the Commission) minus effective precipitation. This determination shall be made as an average of such use for consecutive years for the period of record defined under Rule 7.10.1. It shall be the burden of the Applicant to demonstrate the land was irrigated.

(b) For a well used for other than an irrigation use, the allowable average annual Historical Withdrawal shall be limited to the actual average historical use as determined from actual records or other data establishing the amount of actual historical use. This determination shall be made as an average of such use for consecutive years for the period of record defined under Rule 7.10.1.

7.10.6 Limitations necessary to prevent an increase over historical depletions to the aquifer shall include a reduction in allowable withdrawal where necessary to compensate for any decrease in return flows to the aquifer, resulting from a change in method of operation.

7.10.7 The Commission Staff will make available the values for potential Crop Consumptive Use, effective precipitation, and net irrigation requirement for major crops at key weather station locations in the vicinity of the designated ground water basins as computed by the Modified Blaney-Criddle method. The Staff will update this information as necessary.

7.10.8 If an application is for a change of that portion of a Water Right for which a previous Change of Water Right has been approved and for which the Historical Withdrawal and depletion was previously determined under Rule 7.10, the Commission shall not reconsider or re-quantify the Historical Withdrawal and depletion. However, the Commission may, without re-quantifying the Historical Withdrawal and depletion, impose such terms and conditions on the future use of that portion of the Water Right that is the subject of the changes as needed to limit the future withdrawal and depletion of that portion of the Water Right to the previously quantified Historical Withdrawal and depletion.

7.11 Three-Year Modified Banking

7.11.1 Only those wells for which a change in Water Right has determined Historical Withdrawal in accordance with Rule 7.10 can use the three-year modified banking provision. To initiate a banking reserve, an Applicant must have a written authorization from the Commission. In the first year, the Applicant will be allowed to withdraw an amount up to the specified amount determined to be the allowed average annual Historical Withdrawal. In successive years, the amount which can be withdrawn during the current year will be the allowed average annual Historical Withdrawal plus the amount of water in banking reserve for the well, not to exceed the originally permitted maximum annual Appropriation of that well.

7.11.2 The maximum number of acre-feet that can be placed in banking reserve shall not exceed an amount equal to three times the difference between the originally permitted maximum annual Appropriation of that well and the allowed average annual Historical Withdrawal for that well. The annual amount of water to be added to the banking reserve is the difference in the allowed average annual Historical Withdrawal minus the amount of water actually withdrawn by the well for that year. Likewise, the banking reserve shall be reduced by an amount equal to the quantity of banking reserve water pumped by the specific well for that year.

7.11.3 For any situation where actual pumping cannot be determined using flow meter records and/or power meter records, it shall be the Applicant's burden to demonstrate estimated pumping from the well:

(a) for irrigation use, from the net crop irrigation requirement divided by irrigation efficiency (where the net crop irrigation requirement is equal to total potential Crop Consumptive Use (as determined by use of the Modified Blaney-Criddle method or other consumptive use estimate method acceptable to the Commission) minus effective precipitation), or

(b) for any other use, from actual records or other data establishing the amount of actual use. The Commission shall make the final decision on the reasonableness of such pumping estimates. Failure of the Applicant to meet this requirement will be a cause for reinitiating the three-year modified banking program to the first year situation with no credit for real or claimed carryover. However, any deficit or over-pumping will be carried over the reinitiation of the banking program to prevent injury to other water rights.

7.11.4 The three-year modified banking program shall be adjusted to account for a change in the method of irrigation or any other factor which would affect the allowed historical depletion of the aquifer from the well.

7.11.5 The owners of wells for which a previous Change of Water Right has determined average annual Historical Withdrawal may apply to the Commission to avail themselves of the provisions of three-year modified banking. For these applications the banking reserve for the current calendar year shall be computed using the pumping that occurred in the prior three consecutive calendar years, so long as the well was operating under average annual Historical Withdrawal limits. If the well was operating under average annual Historical Withdrawal limits for less than the prior three consecutive calendar years, then the actual number of prior consecutive calendar years for which the well operated under the said limits shall be used to compute the banking reserve for the current calendar year.

7.12 Alternate Point of Diversion Wells and Supplemental Wells

7.12.1 To implement the purpose and intent of section 37-90-111(2), C.R.S., applications for alternate point of diversion well permits and supplemental well permits may not be approved in any aquifer or area of an aquifer that is declared to be overappropriated by the Commission in these Rules because the allowable net average annual depletion rate has already been exceeded such that any new alternate point of diversion well or supplemental well would deplete the aquifer in excess of the rate of depletion prescribed by the Commission.

7.12.2 In aquifers or areas of an aquifer where not prohibited by Rule 7.12.1, in determining whether a proposed alternate point of diversion well or supplemental well will cause material injury to the vested rights of other appropriators, the following factors shall be considered.

7.12.2.1 The Applicant shall be required to provide evidence of actual legal Historical Withdrawals and depletions of water from the original well in accordance with Rule 7.10. Terms and conditions shall be imposed to prevent an increase over legal Historical Withdrawals and depletions to the aquifer.

7.12.2.2 The alternate point of diversion well or supplemental well must produce from the same aquifer as the original well. If the original well produces from multiple aquifers, the alternate point of diversion well or supplemental well must produce from those same aquifers at the same relative proportions. To ensure the same proportions, the alternate point of diversion well or supplemental well should be completed in identical producing intervals and aquifers as the original well. Alternative well completion approaches may be considered that ensure the apportionment of production is the same.

7.12.2.3 An alternate point of diversion well or supplemental well may not be at a site where there is a Saturated Aquifer Thickness greater than, or a rate of water level decline less than, at the original well at the time when the application is filed, unless (1) the difference in Saturated Aquifer Thickness or rate of water level decline will not facilitate an increased use of water; or (2) restrictive terms and conditions can be imposed to ensure that the alternate point of diversion well or supplemental well will not result in greater future water availability (e.g. future pumping limitation less than the established historical consumptive use); or (3) the application for the alternate point of diversion well or supplemental well is accompanied by a change in use for compact compliance purposes. The determination of whether there is greater Saturated Aquifer Thickness or a lesser rate of water level decline shall be made solely on the basis of existing data that is available when an application if filed, and applicants shall not be required to obtain new data for the purpose of this analysis.

7.12.2.4 An alternate point of diversion well or supplemental well shall not be closer to an existing well producing from the same aquifer or aquifers than the minimum distance required for new wells under Rule 5 unless specifically approved by the Commission after a written request and hearing, or unless the owner of the existing well gives a Waiver of Claim of Injury.

7.12.2.5 For the Northern High Plains Designated Ground Water Basin, any request for an alternate point of diversion well or supplemental well in excess of 300 feet from the permitted location of the original well shall be denied unless there is water available for Appropriation at the proposed new location using the methodology described in Rule 5.2.2.

7.12.2.7 For all designated ground water basins other than the Northern High Plains Designated Ground Water Basin, any request for an alternate point of diversion well or supplemental well in excess of one-half (1/2) mile from the permitted location of the original well shall be denied.

7.12.3 Both the original well and the alternate point of diversion well or supplemental well must have a totalizing flow meters installed, or have an alternate method of measurement of withdrawals as approved by the Commission.

7.12.4 The cumulative Allowed Maximum Annual Amount of Withdrawal from both the original well and the alternate point of diversion well or supplemental well shall be administered by the three year modified banking provisions of Rule 7.11.

7.12.5 The well must owner have a contract with the local Ground Water Management District, Commission, or other person or entity acceptable to the Commission, to provide assistance with administration of the original well and the alternate point of diversion well or supplemental well as may be required by the approval of the alternate point of diversion well or supplemental well.

7.13 Temporary changes in use providing for emergency situations

7.13.1 An emergency situation is defined as a situation affecting (1) public health or safety, or (2) compliance with interstate compacts, where a water supply is needed more quickly than the time required to process a permanent change in use.

7.13.2 For emergency situations where a water supply is needed for a period of less than ninety days, a temporary change in use may be approved by Staff if the Staff determines that the change will not cause material injury to the vested rights of other appropriators. Upon the end of the emergency situation, the use of the right shall revert back to the use that was permitted prior to the temporary change.

7.13.3 For emergency situations where a water supply is needed for a period of more than ninety days, a request for a temporary change in use may be approved by Staff for a time period not to exceed one year, if the Staff determines that the change will not cause material injury to the vested rights of other appropriators and the following requirements have been met:

(a) an application for a permanent Change of Water Right has been filed;

(b) the publication of the permanent Change of Water Right application has been initiated; and

(c) the publication describes both the temporary change of use and the permanent Change of Water Right requested by the Applicant. All objections to both the temporary change of use and permanent Change of Water Right will be heard and resolved using the normal hearing process for Change of Water Right applications. If the hearing officer (or the Commission) enters a decision which is different than the decision of the Staff regarding an emergency situation, the decision of the hearing officer (or the Commission) shall immediately supersede the decision of the Staff. Any request for an extension of a temporary approval beyond one year, if the emergency situation continues and the permanent Change of Water Right hearing process has not been completed, will be considered and acted upon by the Commission or its hearing officer and not by the Staff, without any republication unless required by the Commission or its hearing officer.

2 CCR 410-1-7

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

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