Who gets what
Water rights issues in Paint Brush Hills Metropolitan District, which could possibly affect homeowners in the vicinity of Rex Road, has been dragging on for some time and is still unsettled. The problem was first reported in the May 2023, issue of The New Falcon Herald and updated twice since then.
Over time, the situation has become more complicated as PBH has filed applications with the Colorado Groundwater Commission that are confusing and could set a precedent.
Groundwater in the Falcon area comes from the Denver Basin, which extends from Greeley to Colorado Springs and from Limon to the foothills. Within the Denver Basin are four separate aquifers at different depths: the Dawson, Denver, Arapahoe and Laramie-Fox aquifers. The water in each aquifer is completely separate from the other aquifers, and all four aquifers are nonrenewable.
On June 7, 2022, PBH applied to the Colorado Groundwater Commission requesting water rights under filings 1, 2 and 3 in the Denver Aquifer. Those filings are located in the area of Rex Road. At the same time, PBH also requested a variance to withdraw the water under filings, 1, 2 and 3 from wells located anywhere in the district.
“There is water in PBH that has not been claimed,” said Robert Guevara, manager of the Paint Brush Hills District, in the June 2023, issue of the NFH. Guevara said that along with the property, the developers of PBH bought the water rights for all four aquifers underlying filings 1, 2 and 3 from the original owners of the property. The developer in turn sold the water rights to the Dawson Aquifer to the people who bought property in filings 1, 2 and 3. Those homeowners drilled wells into the Dawson Aquifer, and PBH retained the water rights to the other three aquifers that underlie these filings, Guevara said.
However, as is sometimes the case, Guevara said those water rights were never recorded, further complicating the situation.
Dave Doran, president of the Upper Black Squirrel Creek Ground Water Management District, was also quoted in the June 2023, issue of the NFH stating that the Paint Brush Hills request would set a precedent. “The statute is clear that the water (from the aquifers) has to be used on overlying land.”
According to the “Denver Basin Groundwater Rights” document cited on the Division of Water Resources website “A landowner, or party to which the water rights underlying the land has been conveyed, may claim a right to withdraw and use groundwater from the Denver Basin bedrock aquifers underlying the land.”
According to the “Denver Basin Groundwater Rights” document cited on the Division of Water Resources website: “A landowner, or party to which the water rights underlying the land has been conveyed, may claim a right to withdraw and use groundwater from the Denver Basin bedrock aquifers underlying the land.” The Groundwater Rights document also includes this statement: “A landowner or party to which the water right underlying the land has been conveyed is limited to withdrawing only that water that has been determined to be underlying the land.” The Division of Water Resources document “Rules and Regulations for the Management and Control of Designated Groundwater” (Section 5.3.2.1) states, “Pursuant to section 37-90-207(7), C.R.S., determination of designated groundwater contained in the Denver Basin Aquifer shall be on the basis of ownership of the overlying land.”
On Aug. 8, 2023, PBH withdrew the request for a variance to withdraw water from under filings 1, 2 and 3 using wells located anywhere in the district. The original request for Denver Aquifer water rights under filings 1, 2 and 3 is still pending. Action on that application is in the hearing process. A date for the hearing has not yet been set.
On Oct. 4, 2023, PBH applied for water rights from the Dawson and Denver aquifers under another area of Paint Brush Hills, in addition to the previous application for Dawson Aquifer water rights under filings 1, 2 and 3. They also applied to combine the above areas into a single well field and requested permission to withdraw water from the combined well field using wells located anywhere in the combined area. Those applications are pending, awaiting further information from the applicant.
It appears that if the requested areas in PBH are combined into one area, water from under the combined area could be drawn from well fields anywhere in that area.
In the ensuing months, the NFH made several unsuccessful attempts to contact Guevara for further comment. However, in January, Guevara eventually replied by phone and said there was no change and added that he “did not appreciate” the NFH calling him about the situation.
In February, Doran said his board’s counsel was seeking clarification from Paint Brush Hills. Previously, Doran said that some wells in the Dawson aquifer, where current residents in filings 1, 2 and 3 get their well water, are witnessing their wells drying up. If PBH’s applications are approved, residents in those filings would not be able to drill further into the Dawson because Paintbrush Hills would own those water rights.
