Plan Ahead – In Colorado, a complex set of laws and regulations govern when and where water can be taken and used. The process of determining whether water is available for your needs and obtaining a legal water supply can be a lengthy process.
Need Water Quickly? – The best option in this case may be to lease treated effluent water from a municipality that has a supply that is “fully consumable” and can be legally used at any location and for any purpose. This water may be expensive, however.
Ensure The Source is Legally Available – Just because someone has a water right and they are willing to sell water, does not mean that the water can legally be used for industrial purposes. Water rights are limited by point of diversion, place of use, and purpose of use. A water court process may be needed to change it so that it is available for different purposes.
Determine if there is “Nontributary” Water Available – Parts of Colorado have aquifers that have been legally designated as “nontributary.” Unlike other water rights, overlying landowners own the right to this water. These water rights often have less restrictions than tributary groundwater or surface water, and can be a good option for industrial uses. The surface owner may have nontributary water rights that can be leased for energy development purposes.
Produced Water – In Colorado, there are specific regulations to determine whether produced water requires a water well permit and whether the water can be beneficially used. Depending on the circumstances, this water may be available for subsequent use.
Pitfalls with “Tributary” Wells – If a water well pumps water from an aquifer that is connected to a surface stream, which is the presumption in Colorado, then the well cannot be used unless it is part of a court-approved augmentation plan or an administratively approved substitute water supply plan. In either case, a replacement water source is required to replace depletions caused by the groundwater pumping.
Get to Know the Local Water Commissioner – The Water Commissioner is the “water cop” for a particular geographic region, who makes sure that water users comply with legal requirements. This person knows and understands the river systems and water users in an area better than anyone else. The water commissioner can be an invaluable resource for ideas of available water supplies in a given area. Once you obtain a water supply, you will need to follow this person’s requirements as well!
Year Round Supplies Often Require Storage – If you need a supply that is available all year, then a storage reservoir such as a reclaimed gravel pit, may be an important component to consider.
Designated Groundwater Basins – Much of eastern Colorado is located within designated groundwater basins, under the jurisdiction of individual groundwater management districts.
Call the Experts – In order to successfully navigate the laws and technical requirements for the diversion and use of water, it is important to obtain legal counsel and an experienced water resources engineer from the outset to avoid pursuing options with legal or technical fatal flaws.
FOR ADDITIONAL INFORMATION ON WATER LAW PLEASE CONTACT:
CAROLYN BURR cburr@wsmtlaw.com
JAMES NOBLE jnoble@wsmtlaw.com