As used in this article 92, unless the context
otherwise requires:
(1) Abandonment of a conditional water right means the termination of a
conditional water right as a result of the failure to develop with reasonable
diligence the proposed appropriation upon which such water right is to be based.
(2) Abandonment of a water right means the termination of a water right in
whole or in part as a result of the intent of the owner thereof to discontinue
permanently the use of all or part of the water available thereunder. Any period of
nonuse of any portion of a water right shall be tolled, and no intent to discontinue
permanent use shall be found for purposes of determining an abandonment of a
water right for the duration that:
(a) The land on which the water right has been historically applied is enrolled
under a federal land conservation program;
(b) The nonuse of a water right by its owner is a result of participation in:
(I) A water conservation program approved by a state agency, a water
conservation district, or a water conservancy district;
(II) A water conservation program established through formal written action
or ordinance by a municipality or its municipal water supplier;
(III) An approved land fallowing program as provided by law in order to
conserve water;
(IV) A water banking program as provided by law;
(V) A loan of water to the Colorado water conservation board for instream
flow use under section 37-83-105 (2); or
(VI) Any contract or agreement with the Colorado water conservation board
that allows the board to use all or a part of a water right to preserve or improve the
natural environment to a reasonable degree under section 37-92-102 (3); or
(c) Subject to section 37-92-305 (3)(f), during the period beginning January
1, 2020, and ending December 31, 2050, an electric utility in division 6 decreases
use of a water right, or does not use a water right, if the electric utility has owned
the water right since January 1, 2019.
(3) (a) Appropriation means the application of a specified portion of the
waters of the state to a beneficial use pursuant to the procedures prescribed by
law; but no appropriation of water, either absolute or conditional, shall be held to
occur when the proposed appropriation is based upon the speculative sale or
transfer of the appropriative rights to persons not parties to the proposed
appropriation, as evidenced by either of the following:
(I) The purported appropriator of record does not have either a legally vested
interest or a reasonable expectation of procuring such interest in the lands or
facilities to be served by such appropriation, unless such appropriator is a
governmental agency or an agent in fact for the persons proposed to be benefited
by such appropriation.
(II) The purported appropriator of record does not have a specific plan and
intent to divert, store, or otherwise capture, possess, and control a specific quantity
of water for specific beneficial uses.
(b) Nothing in this subsection (3) shall affect appropriations by the state of
Colorado for minimum streamflows as described in subsection (4) of this section.
(4) Beneficial use means the use of that amount of water that is reasonable
and appropriate under reasonably efficient practices to accomplish without waste
the purpose for which the appropriation is lawfully made. Without limiting the
generality of the previous sentence, beneficial use includes:
(a) The impoundment of water for firefighting or storage for any purpose for
which an appropriation is lawfully made, including recreational, fishery, or wildlife
purposes;
(b) The diversion of water by a county, municipality, city and county, water
district, water and sanitation district, water conservation district, or water
conservancy district for recreational in-channel diversion purposes; and
(c) For the benefit and enjoyment of present and future generations, the
appropriation by the state of Colorado in the manner prescribed by law of such
minimum flows between specific points or levels for and on natural streams and
lakes as are required to preserve the natural environment to a reasonable degree.
(5) Change of water right:
(a) Means a change in the type, place, or time of use, a change in the point of
diversion except as specified in section 37-86-111 (2), a change from a fixed point of
diversion to alternate or supplemental points of diversion, a change from alternate
or supplemental points of diversion to a fixed point of diversion, a change in the
means of diversion, a change in the place of storage except as specified in section
37-87-101 (3), a change from direct application to storage and subsequent
application, a change from storage and subsequent application to direct
application, a change from a fixed place of storage to alternate places of storage, a
change from alternate places of storage to a fixed place of storage, or any
combination of such changes; and
(b) Includes changes of conditional water rights as well as changes of water
rights.
(5.5) Coal bed methane well means a well permitted by the energy and
carbon management commission created in section 34-60-104.3 (1) or a well
authorized by a federal or tribal entity and constructed for the primary purpose of
producing methane gas from a coal bed.
(6) Conditional water right means a right to perfect a water right with a
certain priority upon the completion with reasonable diligence of the appropriation
upon which such water right is to be based.
(6.3) Control structure means a structure consisting of durable synthetic
or natural materials that has been placed with the intent to divert, capture, possess,
and control water in its natural course for an appropriator's intended and specified
recreational in-channel diversion. The control structure and its efficiency shall be
designed by a professional engineer, as that term is defined in section 12-120-202
(7), or under the direct supervision of a professional engineer, and constructed so
that it will operate efficiently and without waste to produce the intended and
specified reasonable recreation experience. Concentration of river flow by a control
structure constitutes control of water for a recreational in-channel diversion.
(6.7) County means any county and any city and county established under
Colorado law.
(7) Diversion or divert means removing water from its natural course or
location, or controlling water in its natural course or location, by means of a control
structure, ditch, canal, flume, reservoir, bypass, pipeline, conduit, well, pump, or
other structure or device; except that, on and after January 1, 2001, only a county,
municipality, city and county, water district, water and sanitation district, water
conservation district, or water conservancy district may file an application to
control water in its natural course or location by means of a control structure for
recreational in-channel diversions.
(7.3) Electric utility means a qualifying retail utility, as defined in section
40-2-125.5 (2)(c), or a wholesale generation and transmission electric cooperative
subject to section 25-7-105 (1)(e)(VIII)(I).
(8) Person means an individual, a partnership, a corporation, a municipality,
the state of Colorado, the United States, or any other legal entity, public or private.
(9) Plan for augmentation means a detailed program, which may be either
temporary or perpetual in duration, to increase the supply of water available for
beneficial use in a division or portion thereof by the development of new or
alternate means or points of diversion, by a pooling of water resources, by water
exchange projects, by providing substitute supplies of water, by the development
of new sources of water, or by any other appropriate means. Plan for
augmentation does not include the salvage of tributary waters by the eradication
of phreatophytes, nor does it include the use of tributary water collected from land
surfaces that have been made impermeable, thereby increasing the runoff but not
adding to the existing supply of tributary water.
(10) Priority means the seniority by date as of which a water right is
entitled to use or conditional water right will be entitled to use and the relative
seniority of a water right or a conditional water right in relation to other water rights
and conditional water rights deriving their supply from a common source.
(10.1) Reasonable recreation experience means the use of a recreational in-channel diversion for, and limited to, nonmotorized boating. Other recreational
activities may occur but may not serve as evidence of a reasonable recreation
experience.
(10.3) Recreational in-channel diversion means the minimum amount of
streamflow as it is diverted, captured, controlled, and placed to beneficial use
between specific points defined by control structures pursuant to an application
filed by a county, municipality, city and county, water district, water and sanitation
district, water conservation district, or water conservancy district for a reasonable
recreation experience in and on the water from April 1 to Labor Day of each year
unless the applicant can demonstrate that there will be demand for the reasonable
recreation experience on additional days. The recreational in-channel diversion
shall be limited to one specified flow rate for each time period claimed by the
applicant. Individual time periods shall not be shorter than fourteen days unless the
applicant can demonstrate a need for a shorter time period. There shall be a
presumption that there will not be material injury to a recreational in-channel
diversion water right from subsequent appropriations or changes of water rights if
the effect on the recreational in-channel diversion caused by such appropriations or
changes does not exceed one-tenth of one percent of the lowest decreed rate of
flow for the recreational in-channel diversion as measured at the recreational in-channel diversion and the cumulative effects on the recreational in-channel
diversion caused by such appropriations or changes do not exceed two percent of
the lowest decreed rate of flow for the recreational in-channel diversion measured
at the recreational in-channel diversion. The owner of a water right for a
recreational in-channel diversion may not call for water that has been lawfully
stored by another appropriator.
(10.4) Removal of water means a change in the type and place of use of an
absolute decreed agricultural water right from irrigated agricultural use in one
county to a use not primarily related to agriculture in another county.
(10.5) Revegetation means the establishment of a ground cover of plant
life demonstrated to be, without irrigation, reasonably capable of sustaining itself
under the climatic conditions, soils, precipitation, and terrain prevailing for the
lands from which irrigation water is removed. Grasses or other plants used for the
purpose of revegetation shall not be noxious as such plants are defined under the
provisions of the Colorado Noxious Weed Act, article 5.5 of title 35, C.R.S.
(10.6) Rotational crop management contract means a written contract in
which the owner or groups of owners of irrigation water rights agree to implement a
change of the rights to a new use by foregoing irrigation of a portion of the lands
historically irrigated and that provides that the water rights owner or groups of
owners may rotate the lands that will not be irrigated as long as there is no injurious
effect as specified in section 37-92-305 (3). The contract shall also provide that in
the change of water right proceeding the water rights owner or groups of owners
shall seek water court approval to rotate the lands that will not be irrigated as long
as there is no injurious effect as specified in section 37-92-305 (3).
(10.7) Significant water development activity means any removal of water
that results in the transfer of more than one thousand acre-feet of consumptive use
of water per year by a single applicant or an applicant's agents.
(10.8) Storage or store means the impoundment, possession, and control
of water by means of a dam. Waters in underground aquifers are not in storage or
stored except to the extent waters in such aquifers are placed there by other than
natural means with water to which the person placing such water in the
underground aquifer has a conditional or decreed right.
(11) Underground water, as applied in this article for the purpose of
defining the waters of a natural stream, means that water in the unconsolidated
alluvial aquifer of sand, gravel, and other sedimentary materials and all other
waters hydraulically connected thereto which can influence the rate or direction of
movement of the water in that alluvial aquifer or natural stream. Such
underground water is considered different from designated groundwater as
defined in section 37-90-103 (6).
(12) Water right means a right to use in accordance with its priority a
certain portion of the waters of the state by reason of the appropriation of the
same.
(13) Waters of the state means all surface and underground water in or
tributary to all natural streams within the state of Colorado, except waters referred
to in section 37-90-103 (6).
(14) (a) Well means any structure or device used for the purpose or with the
effect of obtaining groundwater for beneficial use from an aquifer. Well includes
an augmentation well that diverts groundwater tributary to the South Platte river
and delivers it to a surface stream, ditch, canal, reservoir or recharge facility to
replace out-of-priority stream depletions, or to meet South Platte river compact
obligations, either directly or by recharge accretions, as part of a plan for
augmentation approved by the water judge for water division 1 or a substitute water
supply plan approved pursuant to section 37-92-308.
(b) Well does not include a naturally flowing spring or springs where the
natural spring discharge is captured or concentrated by installation of a near-surface structure or device less then ten feet in depth located at or within fifty feet
of the spring or springs' natural discharge point and the water is conveyed directly
by gravity flow or into a separate sump or storage, if the owner obtains a water
right for such structure or device as a spring pursuant to article 92 of this title.