Sidebar by Ed Quillen
Water – March 1996 – Colorado Central Magazine
If you buy rural land, Colorado law won’t let you just drill a well and go about installing a shower and a garden. The water you use, even though it is pumped up from land you own, might be water that belongs to someone else.
The essence of Colorado water law is the “doctrine of prior appropriation.” Basically, it means that whoever claims the water first, and puts the water to “beneficial use,” has a legal claim to the water which supersedes the claims of someone who came along later. If there isn’t enough water to go around, then the water rights with the earliest dates get theirs, and later claimants go dry.
For instance, a farm down the Arkansas by Cañon City may have started using river water in 1869. If you bought mountain land in Arkansas drainage in 1996, and decided to take your water out of the creek, you would be diminishing the amount of water that flows past Cañon City and the amount of water available to that farm.
If there weren’t enough water in the river to satisfy all the claims against it, the state (acting through the state engineer’s office) would tell you to close your diversion so that the “senior user” downstream would get his share.
This is fairly straightforward for surface water, and the logic is similar for wells. In most cases, underground water eventually arrives in a river, and so if you pump water out of the aquifer, you could be taking water that would otherwise flow to someone with a senior water right.
Thus wells, like irrigation ditches and other water diversions, are regulated by the state engineer to insure that senior users get the water that they’re legally entitled to.
Wells can have “priority dates” and “decreed water rights,” but not all wells do. Most wells at rural residences (as opposed to working farms or ranches) are “exempt wells.” They require a permit from the state engineer, but they don’t have decreed rights and priority dates.
Ken Baker, a Salida water lawyer and manager of the Upper Arkansas Water Conservancy District, explained the common varieties of household wells.
Domestic Well. This provides household water, as well as enough to irrigate one acre of lawn or garden. If you’ve got at least 35 acres, you can get a domestic well permit “at least 99% of the time.”
These allow a pumping rate of up to 15 gallons per minute, and “the presumption is that it will amount to about one acre-foot per year,” Baker said, “and of that, only 30% will be consumed. The other 70% will return to the aquifer, and the state assumes that downstream users will not suffer from this.”
In-house Use Well. This also provides household water, but you’re not allowed to have an outside water tap. Usage is assumed to be 1/3 of an acre foot per year.
“Generally, the engineer’s office issues these quite readily,” Baker said, “but they will be more controlled in the future as more and more people move onto rural land.”
Suppose that you’ve got ten acres and you want a big lawn and garden. An In-house Use Well won’t do the job, and neither will a Domestic Well.
In that case, there’s “augmentation.” You buy water that would have otherwise irrigated a nearby field, arrange to have that water bypassed back to the river instead (to protect downstream users’ rights), and then you can drill your well and irrigate your lawn and garden — and dry up the agricultural land that had been irrigated with that water.
More correctly, you can drill your well and cross your fingers. “Having a right to water under your property isn’t the same as having water under your property,” Baker cautioned. “Even if you’ve got the right, you’ve still got to find the water. If you can afford to drill only 200 feet, and the water’s 500 feet down, you’re out of luck.”
Around Central Colorado, augmentation varies considerably, Baker said. Along the Arkansas in Chaffee, Lake, and Frémont counties, “you can generally buy Twin Lakes water [diverted from the Western Slope] for augmentation.”
In the Wet Mountain Valley, “there’s not as much augmentation water available, but you can find it.” In South Park, “the Front Range cities own almost all the available water, and they’re not about to sell it. It’s tough there.”
Eastern Saguache County is in the “closed basin,” which isn’t exactly tributary to the Rio Grande, “and they operate differently there. But getting augmentation water usually isn’t a problem.”
On the Western Slope in Gunnison County and western Saguache County, “they’ve got plenty of water because Colorado isn’t using all its share of the Colorado River. Generally you won’t be hurting anyone else’s water right with your well.”
Does all this sound complicated? It is, and that may explain why, of all the water lawyers in the world, Colorado has half of them.
But for the typical person wanting water on rural land, Baker said, “the well driller deals with the state engineer and handles the paperwork. These guys have been through this hundreds of times, and they know their business.”
Up to a point. “Remember, they can get the permit, and they can operate the drilling rig. But they can’t guarantee that they’ll find water down there.” Then he started talking about dowsing, and asked my opinion.
I quoted Gene Rush, a retired hydrologist: “You drill deep enough anywhere on this planet, you’ll eventually hit water. The question isn’t whether there’s water down there somewhere, but whether you can afford to reach it.”
— Ed Quillen
