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<br />Section 4 <br />Legal Framework for Water Use <br /> <br />4.2.7 New Appropriations <br /> <br />Making a new appropriation is always an option for water <br />planning. Although some river basins are currently over- <br />appropriated, in every basin there are usually a few days <br />a year in which a free river condition exists and all rights <br />can divert. Thus, while a 2004 priority is a very junior <br />right, and will probably not have a reliable supply of <br />water during the periods of high senior demands, it may <br />still be possible to divert water under such a right at peak <br />flow times. In addition, one could use an augmentation <br />plan in conjunction with a very junior right to obtain a <br />stable water supply. <br /> <br />To make an appropriation, one must have a specific <br />intent to divert water for a beneficial use and perform a <br />physical act in furtherance of that intent. Today, new <br />appropriations are often made by filing an Application for <br />a Water Right in the water court. However, no <br />appropriation can be made when "the proposed <br />appropriation is based on the speculative sale or transfer <br />of the appropriative rights."44 This anti-speculation <br />doctrine prevents individuals or entitles from acquiring <br />water rights solely to sell to others. The waters of <br />Colorado are a public resource and as such are not to be <br />hoarded by those who do not have a present use for the <br />water. <br /> <br />4.2.8 Groundwater Rights <br />In Colorado, there are four different types of <br />groundwater: <br /> <br />. Tributary groundwater <br />. Non-tributary groundwater <br />. Not non-tributary groundwater <br />. Designated groundwater <br />The classification in which the groundwater falls <br />determines how the water is allocated. Thus, while <br />tributary groundwater is subject to the prior appropriation <br />system, non-tributary groundwater and not non-tributary <br />groundwater is allocated according to land ownership, <br />and designated groundwater is subject to a modified <br />prior appropriation system within each designated basin. <br /> <br />Tributary groundwater is water that is hydrologically <br />connected to a surface stream.45 In Colorado, all <br />groundwater is presumed to be tributary to a surface <br /> <br />44 S 37-92-130(3)(a), C.R.S. <br />45 McClennan v. Hurdle, 33 P. 280 (Colo. 1893). <br /> <br />S:\1177\Basin Reports\South Platte\S4_South Platte.doc <br /> <br />stream. In the early 1900s, Colorado courts held that <br />tributary groundwater is subject to the prior appropriation <br />system.46 The court based its decision, in part, on the <br />fact that wells that intercept tributary groundwater <br />actually deplete the stream flow to the detriment of senior <br />surface appropriators.47 <br /> <br />Non-tributary groundwater is statutorily defined as that <br />groundwater, outside the boundaries of a designated <br />basin, "the withdrawal of which will not, within one <br />hundred years, deplete the flow of a natural stream... at <br />an annual rate greater than one-tenth of one percent of <br />the annual rate of withdrawal."48 The right to use non- <br />tributary groundwater is purely a function of statute.49 <br />The General Assembly has recognized that non-tributary <br />groundwater is a finite resource and has specifically <br />declared that "such water shall be allocated... upon the <br />basis of ownership of overlying land.5o Rights to use non- <br />tributary groundwater are limited to "that quantity of <br />water, exclusive of artificial recharge, underlying the land <br />owned by the applicant or underlying land owned by <br />another" who has consented to the applicant's <br />withdrawal.51 The annual withdrawal of this type of <br />groundwater is further limited in accordance with a <br />1 OO-year aquifer life. 52 <br /> <br />Not non-tributary groundwater is groundwater located <br />within one of the Denver Basin aquifers (the Dawson, <br />Denver, Arapahoe, and Laramie-Fox Hills aquifers in the <br />Denver Basin, which extends roughly from Fort Collins to <br />Colorado Springs and from the foothills eastward), but <br />outside the boundaries of a designated basin, the <br />"withdrawal of which will, within one hundred years, <br />deplete the flow of a natural stream... at an annual rate of <br />greater than one-tenth of one percent."53 Not non- <br />tributary groundwater is also allocated on the basis of <br />land ownership. However, the owner of a not non- <br />tributary well must have a plan for augmentation in place <br />before withdrawing such water. 54 <br /> <br />Designated groundwater is groundwater that would not <br />be available to fulfill surface rights or groundwater that <br /> <br />46 Comstock v. Ramsay, 133 P. 1107 (Colo. 1913). <br />47 Id. <br />48 S 37-90-103(10.5), C.R.S. <br />49 S 37-90-102(2), C.R.S. <br />50 Id. <br />51 S 37-90-137(4)(b)(II), C.R.S. <br />52 S 37-901-137(4). <br />53 S 37-90-103(10.7), C.R.S. (emphasis added) <br />54 S 37-90-137(9)(c)(I), C.R.S. <br /> <br />CONI <br /> <br />4-7 <br />