Volume No. 16 Issue No. 11 November 2019  



  Water Law: It takes a lawyer
  By Donna Duncan, Black Forest Water and Wells Committee

     On Sept. 30, Hank Worley, a Colorado retired water attorney, talked to a packed meeting at the Community Center in Black Forest. His topic was titled Denver Basin Aquifers, More Than You Probably Want to Know.
   
   Given the intense interest in Black Forest by big-project developers who mostly expect to furnish groundwater to the future residents, the audience clearly wanted to know what he had to say.
   
   Worley started with a review of the Denver Basin aquifers from the surface down: the Dawson, Denver, Arapahoe and Laramie-Fox Hills. All the water in all four aquifers is non-renewable, meaning water pumped from the aquifer is gone forever.
   
   A water right is a property right, similar to ownership in real property. A land owner acquires a water right by obtaining a well permit and constructing a well on his or her property or by obtaining a decree adjudicating the water right from a water court. Adjudication results in a vested water right. A benefit of adjudication is that if water law changes to affect water appropriation (how water is set aside for use), other than by ownership of the overlying land, the vested property rights are protected. Also, vested property rights can be condemned by a public entity only upon payment of fair compensation.
   
   Adjudication costs between $2,000 and $3,000, if no augmentation plan is required, but with an augmentation plan the cost is between $5,000 and $6,000. An augmentation plan is required for adjudication in mostly nontributary aquifers, such as the Dawson. A mostly nontributary aquifer is one where pumping over decades reduces the flow of water to streams, which reduces the amount of water going to downstream owners of surface water rights. Augmentation plans, therefore, explain how the well owner will replace water that was pumped over time instead of going into streams.
   
   The most common method of meeting the water replacement requirement is to state in the original decree that adequate water from a lower, nontributary aquifer, such as the Arapahoe, will be reserved for that purpose. When pumping in the mostly nontributary aquifer ceases, the current owner constructs a very expensive well into the nontributary aquifer and pumps very small amounts of water into a leach field or something similar for eons to come. Yes, really.
   
   Developers also obtain water rights. El Paso County has a 300-year rule that requires developers to show sufficient water for a subdivision for 300 years. To determine if there is sufficient water, the state engineer’s office examines the developer’s proposed water supply, including the water rights decree; along with, if applicable, the augmentation plan and the proposed water demands of the subdivision. Calculations are performed on the estimated amount of saturated groundwater in each aquifer to be pumped, the surface area of the development and expected flow rates from wells. This number is compared to the anticipated water needs of the development over 300 years. If the estimated amount of water is deemed sufficient, the state issues a finding of sufficiency.
   
   A member of the audience asked if a developer can be sued if they pump so much water that surrounding residential wells suffer material injury. Worley’s answer was yes, but he added, “You’d never win.” The state expects water levels to decline and wells pumped to extinction.
   
   Worley added that his talk represents his understanding of such issues as of the date of his retirement. His information is not intended to provide legal advice regarding any particular situation. Anyone with significant water rights issues is strongly urged to contact an attorney who is competent in such matters.
   
   Worley’s full talk is available at https://www.blackforestwater.org/blog/denver-basin-aquifers-more-than-you-probably-want-to-know. This paper contains information added after his talk about material injury.
 
 
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