State water administration still evolving
By CRAIG COTTEN Division Engineer Colorado Division of Water Resources
This is the thirteenth article in the series from the Rio Grande Basin Roundtable regarding the formation and implementation of the Basin Water Plan. VALLEY For more than 140 years, Colorado has used a system of water allocation known as the prior appropriation system.
Prior appropriation refers to the concept that those that put water to use first are entitled to get their water first during periods of water shortage, or put more simply, “First in Time, First in Right.” The Colorado Division of Water Resources is the sole state agency that is empowered to administer surface and groundwater to ensure that the prior appropriation doctrine is enforced.
The administration of water has been occurring in this area since before Colorado became a state. During the gold rush days when Colorado was still a territory, miners established ‘miners’ courts’ to handle disputes. Many times these disputes centered around water and who was entitled to use the water when there was not enough for everyone. It was during this time that the concept of prior appropriation really came into being in Colorado. In 1876 when Colorado became a state, the idea of a water administration system based upon the prior appropriation doctrine was enshrined in its constitution .
With the establishment of the position of water commissioners in 1879, Colorado became the first state in the nation to provide for the distribution and administration of water by public officials. In 1881, the legislature established the Office of the State Irrigation Engineer, known today as the State Engineer’s Office or the Division of Water Resources. In 1887 the legislature created a position called the superintendent of irrigation for each of the seven main river basins, or divisions, in the state. This position is now known as the Division Engineer.
For the first nearly 90 years of water administration by the state, water administration was restricted mainly to surface water. This changed in 1969 with the passage of the Water Rights Determination and Administration Act. This act required that groundwater be integrated with surface water into the prior appropriation system, and allowed the State Engineer to develop Rules and Regulations to administer groundwater use. In 1972, the State Engineer issued a moratorium on new wells in most parts of the San Luis Valley, and in 1981 that moratorium was expanded to prohibit new wells in all parts of Division 3. In 1975 the State Engineer developed groundwater rules for Division 3, the drainage basin of the Rio Grande. These rules stated that well owners had to replace the depletions due to their well pumping or they would be shut down. Obviously this threat of shutting down many wells in the San Luis Valley did not please the well owners, and a period of nearly 10 years of litigation ensued. In 1985, with an agreement between the parties to the lawsuit, the rules were dismissed . In their place the water users agreed that the Closed Basin Project would be used to offset the depletions to the rivers caused by the wells. The agreement worked fairly well until the late 1990’s and the drought years of the early 2000’s , when it was apparent that more formal regulation of groundwater was needed in Division 3.
One of the hurdles to groundwater regulation in the San Luis Valley has always been the lack of a good understanding of the aquifers and their interaction with the rivers and streams. In 1998 the legislature passed legislation that directed the State Engineer to begin a study of the aquifers of Division 3. This study became known as the Rio Grande Decision Support System (RGDSS), and is an ongoing study that has shed a great deal of light on the aquifers. In that same year the legislature also directed the State Engineer to begin developing rules to govern new withdrawals of water from the confined aquifer based upon information gathered from the RGDSS study. These rules were formally adopted by the State Engineer in 2004 and prevented any increased withdrawals of groundwater from the confined aquifer. After a lengthy trial in Alamosa, the rules were approved by Judge Kuenhold in November 2006. The ruling was appealed to the Colorado Supreme Court, and in 2008 the Supreme Court upheld the rules.
As part of the need to get more data on groundwater usage, the State Engineer established the well measurement rules in 2005. These rules require all large capacity wells, and some smaller wells, in Division 3 to be equipped with flow meters . The meter readings are collected a minimum of once per year and are being used to get a detailed description of the water use by well, and the total groundwater usage in the San Luis Valley . This is very important for the RGDSS model as well as for the impending groundwater rules.
In 2008 the State Engineer established an Advisory Committee in order to assist him in developing new groundwater use rules for existing groundwater uses. It is anticipated that these rules will be finalized this fall. Once the rules are in place, they will require that most large capacity wells in Division 3 replace their depletions to the streams and ensure that the aquifers remain sustainable. Owners that do not replace the depletions from the use of their wells and take steps to bring the aquifers back into a sustainable situation will have their wells shut down.
As water becomes a more and more precious commodity , there is need for increased administration of that water. This is to ensure that the water is being used by the people entitled to use it, that it is being used for its intended purpose, and that there is no injury to someone else’s water rights due to actions by another water user.