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From the Publisher

Paint Brush dipping into water rights

By Pete Gawda

Paint Brush Hills Metropolitan District

is seeking a variance from the Colorado Ground Water Commission to allow the metro district to increase the allotment of water their wells are permitted to pump. If granted, the variance could negatively affect some PBH residents.

“There is water in Paint Brush Hills that has not been claimed,” said Robert Guevera, district manager of Paint Brush Hills metro district. The additional water would come from under property filings 1, 2 and 3; however, the legality of allowing the variance is in question.

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 Hills aquifers. The water in each aquifer is completely separate from the other aquifers, and all four aquifers are nonrenewable. Guevera said, along with the property, the developer of Paintbrush Hills bought the water rights for filings 1, 2 and 3 from the original owners of the property. (Filings 1, 2 and 3 are in the vicinity of Rex Road.) 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 Paint Brush Hills retained the water rights to the other three aquifers in the Denver Basin — the Denver, Arapahoe and Laramie-Fox Hills — that also underlie the filings 1, 2 and 3.

Water rights should be recorded at the local courthouse; however, it hasn’t always been the case. The water rights for filings 1, 2 and 3 were not recorded, and Guevera said water rights to the other three aquifers were never recorded. “We are not taking any water out of the Dawson Aquifer; we don’t have any rights in the Dawson aquifer,” Guevera said. PBH is asking for a variance of rules to verify their claim to the water in the other three aquifers that exist under filings 1, 2 and 3. Guevera said the variance will not affect property owners in those filings as they will still have rights to water in the Dawson Aquifer, and they will not have to hook up to the PBH water system.

Dave Doran, president of the Upper Black Squirrel Creek Groundwater Management District, takes a different position. Doran is afraid Paint Brush Hills will set a precedent. “The statute is clear that the water (from the aquifers) has to be used on overlying land,” Doran said. Currently, water rights are based on water
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 states: “Pursuant to section 37-90-207(7),C.R.S. determinations of allocations of designated groundwater contained in Denver Basin Aquifers shall be on the basis of the ownership of Overlying Land.”

Doran said Paint Brush Hills is trying to use water rights underlying property filings 1, 2 and 3 when there is no ownership of the overlying land (filings 1, 2 and 3). There could be another complication. “We are seeing a lot of Dawson Aquifer wells go dry,” Doran said. He said if the requested variance is granted and the well of a homeowner in filings 1, 2 or 3 went dry, that homeowner would have to request water rights in one of the other aquifers that PHB is claiming. Doran said there is no legal requirement to notify homeowners in the affected area (filings 1, 2 and 3) of the request for the variance. However, in the interest of transparency, he said the residents should be apprised of the PBH request for the variance. There is a hearing scheduled with the Colorado Ground Water Commission for the Paintbrush Hills variance request this coming November. An exact date has not been determined.

Editor’s note: The NFH will track the variance request hearing details and let readers know as soon as the date is set.

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