Non-exempt well rules and regulations approved by Water Division 3 Water Judge Pattie Swift are now in effect for Colorado Division of Water Resources’ Division 3. These well rules and regulations apply to all non-exempt well users in the San Luis Valley, a total of approximately 7,500 wells. Large capacity non-exempt wells include but are not limited to irrigation wells, most commercial business wells, wells providing drinking water to residential subdivisions and municipalities, and manufacturing or industrial wells. However, non-exempt wells can also include smaller capacity wells such as private campground wells, commercial business wells for more than drinking or sewer, or even storage warehouse wells providing humidification. As of March 15, 2021, Division 3 employees will now begin monitoring and enforcing these rules & regulations.
Well use in the San Luis Valley began as far back as the late 1800’s, when wells were dug into the relatively shallow confined, or artesian aquifer. By the 1890’s over two thousand small artesian wells had been dug in the valley. After the advent of electricity in the 1930’s, larger capacity wells popped up in the thousands by the 1950’s and 60’s. A prolonged drought in the 1950’sdried up surface water flows and heralded the first fall back to groundwater pumping as a substitute for flood irrigation. However, 1957 also saw the first piece of well regulation, permits were now required to dig a well. Well rules & regulations continued to evolve as groundwater use increased. In 1965, the former legislation was repealed and a new law enacted, a comprehensive regulation of groundwater that is still in use today. And in 1969, the first heavy lifter of Colorado groundwater law was passed, known as the Colorado Water Right Determination and Administration Act. Previously, the doctrine of prior appropriation, or “First in Time, First in Right,” was already established as the arbiter of surface water users. But it didn’t address groundwater uses. This new act not only created water courts specifically to address water-related concerns, it integrated wells into the priority system, acknowledging that surface water and groundwater are interconnected in most areas of the state, and finally administering surface and groundwater rights in one system. By this time, regulation was rapidly becoming necessary across the state.
In the1970’s, the center pivot sprinkler came into common use and technology caught up with well pumps, enabling farmers to irrigate hundreds of acres at a time. This method was especially appealing to those junior water rights holders who didn’t have ditch water available throughout the growing season, or those who held no surface water rights at all. Throughout the 50’s and 60’s, well permits were easily obtained, creating hundreds of non-exempt wells in both the unconfined and confined aquifers across the San Luis Valley.
Recognizing that so many wells were having a negative impact on the aquifer system, rules and regulations for Division 3 (San Luis Valley) soon followed in 1975, requiring non-exempt wells to augment their water depletions. The ensuing years saw an enhanced moratorium on new wells; as of 1981the state water engineer would no longer allow any new non-exempt wells in the one area that was left out of the 1972 moratorium. These moratoriums are still in effect 4 decades later. The Rio Grande system was also long acknowledged as over-appropriated, with more water rights registered than could realistically be served in a given water year. Therefore, new well permits would only be allowed if the owners were giving up a like amount of water so as not to be injurious to senior water rights holders, a process known as augmentation.
Augmentation plans are common practice across the state of Colorado, with the majority of basins operating under over-appropriated conditions. These plans authorize diversions for beneficial use and ensure that a replacement supply of water is available as a substitute. This allows the junior user to operate without injury to more senior rights.The 1975 rules garnered significant opposition and were ultimately ruled as unacceptable by the Colorado Supreme Court ruling that further study was needed.
An agreement using the Closed Basin Project acted as a stop gap. The well owners and many surface water users agreed that the Closed Basin Project flows could be used to offset groundwater depletions in both the Rio Grande and Conejos River basins, with 60% credited to the Rio Grande and 40% credited to the Conejos. This 60/40 agreement satisfied most parties for the next 13 years.
In 1998, another piece of legislation was approved, House Bill 1998-1011, which acknowledged that wells in different geologic areas impacted the aquifer and thus groundwater in different ways. More data analysis was needed to determine the extent of that impact and to pinpoint more precisely where that impact occurred. The Rio Grande Decision Support System (RGDSS) is a data analysis tool created in response which measures the impact of groundwater depletions on specific stream reaches. The RGDSS has been instrumental in all subsequent legislation regarding water administration.
While the relationship between groundwater and surface water was still in early days of study, especially without the use of the RGDSS, engineering firms were still analyzing groundwater levels of the unconfined aquifer in the closed basin area beginning in 1976, and in 2002, the worst drought year on record, those numbers dropped drastically. Each year they have continued to drop, as groundwater withdrawals exceed natural recharge. These catalysts of drought and new data analysis tools, in addition to the realization that the Closed Basin 60/40 agreement was no longer meeting augmentation requirements, necessitated a prompt return to the question of regulating groundwater use.In response to the rapidly dropping groundwater levels, the state legislature in 2004 passed SB04-222, which directed the State Engineer to develop new groundwater rules for the Valley. The State Engineer then proceeded to work with San Luis Valley well users and others in a step by step fashion, beginning with regulations specific to the confined aquifer and extending the moratorium on no new wells and preventing wells from being moved over a certain distance. The next year saw water measurement rules enacted, specifying that wells pumping over 50 gallons per minute were subject to metering and certification by Colorado Division of Water Resources’ approved well meter testers. These legislative actions and well regulations were not always instigated at the hands of government or water division officials. In 2010, years of some well users not honoring the traditional irrigation season of roughly April 1 –November 1, generally the only time period in which surface water users are allowed to call for irrigation water,came to a head. A formal irrigation season had to be established to prevent groundwater users from turning wells on out of season. The water court ruled that the formal irrigation season would be observed as part of the 2015 Groundwater Rules & Regulations.These rules and regulations bring us back around to the March 15thimplementation date for the new groundwater rules and regulations. The objectives of these regulations are simple. Remedy depletions to surface water rights and sustain the aquifer. Simple, but after more than 80 years of creating legal framework and attempting to understand the relationship between groundwater and surface water, easier said than done. The Rio Grande Decision Support System is integral to determining injurious depletions and all information from the RGDSS undergoes a peer review to assess accuracy. In 21stcentury water, understanding and analyzing unbiased data relevant to groundwater and surface water relationships is the cornerstone of water administration.
After years of sending out letters, visiting well owners in person, attending numerous community meetings, and participating in objection resolution and other legal proceedings in water court, Division of Water Resources staff are ready to implement the legally approved regulations. They have been instrumental, along with other water professionals from the Rio Grande Water Conservation District, SLV Water Conservancy District, Conejos Water Conservancy District, and Trinchera Water Conservancy District, in helping well owners create augmentation plans to file with the water court ortobecome a member of one of seven subdistricts approved by the water division judge. These subdistricts were also formed in response to the 2002 drought, the state water engineer’s decree, and the recognition of the need for a local solution to a difficult problem. While the replacement plans of six of the seven subdistricts have been approved by the State Engineer and are operational, one subdistrict, the Saguache Subdistrict, was denied approval to begin operation for the time being because of inadequate replacement supplies to offset the depletion occurring to Saguache Creek. The RGDSS cannot determine individual injuries, only the injuries occurring within designated stream reaches, or response areas. Subdistricts were therefore created within corresponding geographic response areas. Members create locally approved tax structures, with well owners incurring fees for acre feet pumped. They may utilize incentives such as forbearing to use water in exchange for money or other needed resources. Members are ultimately responsible for reaching sustainability in their respective areas and balancing surface water rights with the use of well owners. Additionally, partnerships with federal and state programs have also benefited subdistrict members, allowed for creativity with building creative infrastructure to increase efficiency, and encouraged more sustainable groundwater use.
Colorado water is precious and finite. Every drop is maximized before it leaves our state to downstream neighbors. Water users who understand the necessity of governing water for the benefit of all are on the path forward towards successfully navigating what will be an increasingly scarce resource. Injurious depletions are a fact in times of scarcity, a non-entity in times of plenty. When all users are junior to someone else (unless the holder of the golden #1 priority), water administration becomes part of daily life. The Colorado Division of Water Resources, in connection with the San Luis Valley water community, is a major partner in creating long term solutions for an issue that is complex and requires thoughtful action. Groundwater rules and regulations ensure that everyone is held accountable to the same standards and are not meant to be a punishment for non-exempt well owners. After many years of working towards this final step, water users have another opportunity to take action towards a sustainable future. A future which will hopefully continue to see a vibrant, thriving agricultural economy despite changes in climate and persistent drought conditions.
Article Credit: Bethany Howell, Rio Grande Basin Roundtable and Craig Cotten, Colorado Division of Water Resources Division 3 Water Engineer