(1) The state
engineer shall be responsible for the administration and distribution of the waters
of the state, and, in each division, such administration and distribution shall be
accomplished through the offices of the division engineer as specified in this
article.
(2) In accordance with procedures specified in this article, the referee in
each division shall in the first instance have the authority and duty to rule upon
determinations of water rights and conditional water rights and the amount and
priority thereof, including a determination that a conditional water right has
become a water right by reason of completion of the appropriation, determinations
with respect to changes of water rights, plans for augmentation, approvals of
reasonable diligence in the development of appropriations under conditional water
rights, and determinations of abandonment of a water rights or a conditional water
rights; and he may include in any ruling for a determination of water right or
conditional water right any use or combination of uses, any diversion or combination
of points or methods of diversion, and any place or alternate places of storage and
may approve any change of water right as defined in this article.
(3) In the distribution of water, the division engineer in each division and the
state engineer shall be governed by the priorities for water rights and conditional
water rights established by adjudication decrees entered in proceedings concluded
or pending on June 7, 1969, and by the priorities for water rights and conditional
water rights determined pursuant to the provisions of this article. All such priorities
shall take precedence in their appropriate order over other diversions of waters of
the state. Subject to section 37-92-502 (2), in determining and administering the
use of water, judicial and administrative officers shall be governed by the following:
(a) In every case in which the owner of an appropriative right to divert water
supplies his water needs by the use of a well, the water diverted by that well may
be charged to its own appropriation; or it may be used to divert water under the
provisions set forth in paragraph (b) of this subsection (3). This statutory statement
is intended as a legislative acknowledgment of the long-held practice in Colorado
under which various water rights may be carried through the same physical
structure.
(b) In any case in which the owner of an appropriative right to divert water at
the surface of a stream or to have water so diverted delivered for his use or benefit
has a well so situated as to draw water from the same stream system, that owner
may secure the right to have such well, or more than one if he has more than one
such well, made an alternate point of diversion to said surface right by procedures
provided in this article for securing alternate points of diversion.
(c) Until July 1, 1972, all diversions by well to supply a water use for which
there is a surface decree may be charged against and be considered as part of the
exercise of said surface decree even if the owner has not secured the right to an
alternate point of diversion at the well, but nothing in this article shall be construed
to prevent regulation of the well in accordance with law and within the system of
priorities established for regulation of diversions of water in Colorado.
(d) In authorizing alternate points of diversion for wells, the widest possible
discretion to permit the use of wells shall prevail. In administering the waters of a
watercourse, the withdrawal of water which will lower the water table shall be
permitted but not to such a degree as will prevent the water source to be recharged
or replenished under all predictable circumstances to the extent necessary to
prevent injury to senior appropriators in the order of their priorities, and with due
regard for daily, seasonal, and longer demands on the water supply.
(4) (a) (I) In every sixth calendar year after the calendar year in which a water
right is conditionally decreed, or in which a finding of reasonable diligence has been
decreed, the owner or user thereof, if such owner or user desires to maintain the
same, shall file an application for a finding of reasonable diligence, or said
conditional water right shall be considered abandoned.
(I.5) If an application described in subsection (4)(a)(I) of this section filed on
or before December 31, 2050, seeks a finding of reasonable diligence for a
conditional water right that is owned by an electric utility in division 6 since January
1, 2019, the water judge may consider the following as supporting evidence for a
finding of reasonable diligence:
(A) The conditional water right may be used to support a specific project or
potential future generation technologies or concepts that have the potential to
advance progress toward Colorado's clean energy and greenhouse gas emission
reduction goals; and
(B) The electric utility has made efforts to develop the water right with
reasonable diligence, which may include efforts made by the electric utility or
another entity in the electric generation and distribution industry or a related
research industry to investigate the technical or commercial viability of future
generation technologies or concepts that have the potential to advance progress
toward Colorado's clean energy and greenhouse gas emission reduction goals.
(II) If a conditional underground water right requires construction of a well,
the expiration of the permit issued for the construction of such well by the state
engineer pursuant to section 37-90-137 (1) shall not be the sole basis for a
determination of abandonment pursuant to subparagraph (I) of this paragraph (a).
(III) The judgment and decree of the court shall specify the month and
calendar year in which a subsequent application for a finding of reasonable
diligence shall be filed with the water clerk pursuant to section 37-92-302 (1). A
subsequent application shall be filed during the same month as the previous decree
was entered every six years after such entry of the decree until the right is made
absolute or otherwise disposed of.
(IV) The provisions of this paragraph (a) shall supersede any contrary
provision or requirement of a previous conditional decree or determination of
reasonable diligence.
(b) The measure of reasonable diligence is the steady application of effort to
complete the appropriation in a reasonably expedient and efficient manner under
all the facts and circumstances. When a project or integrated system is comprised
of several features, work on one feature of the project or system shall be
considered in finding that reasonable diligence has been shown in the development
of water rights for all features of the entire project or system.
(c) Subject to the provisions of paragraph (b) of this subsection (4), neither
current economic conditions beyond the control of the applicant which adversely
affect the feasibility of perfecting a conditional water right or the proposed use of
water from a conditional water right nor the fact that one or more governmental
permits or approvals have not been obtained shall be considered sufficient to deny
a diligence application, so long as other facts and circumstances which show
diligence are present.
(d) In the case of a project or integrated system that contains more than one
water storage feature, an applicant need not demonstrate that all existing absolute
decreed water rights that are part of the project or integrated system have been
utilized to their full extent in order to make absolute, in whole or in part, a
conditional water storage right decreed for a separate feature of the project or
integrated system.
(e) A decreed conditional water storage right shall be made absolute for all
decreed purposes to the extent of the volume of the appropriation that has been
captured, possessed, and controlled at the decreed storage structure.
(5) In all proceedings for a change of water right and for approval of
reasonable diligence with respect to a conditional water right, it is appropriate for
the referee and the courts to consider abandonment of all or any part of such water
right or conditional water right; except that no conditional underground water right
requiring the construction of a well shall be declared abandoned pursuant to this
subsection (5) solely upon the ground that the permit issued for the construction of
such well by the state engineer pursuant to section 37-90-137 (1) has expired. In all
such proceedings, no water storage right shall be declared abandoned in whole or
in part on account of carrying water over in storage from year to year.