Legislative Briefs…

House gives final approval to SB 52

The Colorado House of Representatives approved a bill aimed at providing certainty for water wells pumping in designated ground water basins.  CFB supported SB 52, which was sponsored by Senator Greg Brophy and Representative Kathleen Curry.  The bill clarifies legislative intent of the 1965 Ground Water Management Act creating designated groundwater basins, by providing that once final well permits are issued, the permits cannot be revoked if designated basin boundaries change.  The bill was passed unanimously out of the Senate but ran into opposition in the House over concerns that senior surface water rights would be harmed.  This is not the case because SB 52 focuses on the 8 designated ground water basins in Colorado, and does not affect any other water well in the State.

In 1965, the General Assembly adopted the Ground Water Management Act and provided for the formation of designated ground water basins.  Designated basins are formed only after full hearings are held and objections are heard.  Once the designated basin is formed, ground water rights are determined and administered by the Colorado Ground Water Commission and local ground water management districts.  Unlike the alluvial wells along the South Platte and Arkansas Rivers, this process legally removes the wells in designated basins from Water Court process and the priority administration of surface water and tributary ground water. This is because there are not many surface rights in designated basins.  Designated ground water by definition in state statute is that water “not required for fulfillment of surface rights or ground water in areas not adjacent to continuously flowing streams where groundwater constituted the principal water use for at least 15 years.”

Currently, there are more than 7000 high capacity wells found in the designated basins.  Most are used for agricultural irrigation, with some being used for municipal and industrial purposes in primarily rural areas.  In 2006, the Colorado Supreme Court decided Gallegos v. Ground Water Commission, 147 P.3d 20 (Colo. 2006).  Forty years after most of the designated ground water basins were formed, the Colorado Supreme Court concluded that under the current statute, designation of basins is never really final because the Ground Water Commission may be obligated to revise the boundaries of a basin to exclude wells from the basin.  The court acknowledged that there should be some cutoff time when the boundaries of a designated basin are final, however, decided that the current statute did not provide for such finality.

SB 52 clarifies the General Assembly’s intent that there should be a cutoff date for challenging designation, and that landowners with well permits issued after inclusion in a designated basin can rely on those permits and not be excluded from the basin in the future.

Colorado Farm Bureau supported SB 52, and would like to thank the sponsors, Rep. Curry and Sen. Brophy for their work on this issue.  We would also like to thank Rep. Sonnenberg and Rep. Cory Gardner for their support and their work to answer the many questions about the bill.

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