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<br />AG Report2005-02-25.docATTORNEY GENERAL’S REPORT <br /> <br />Cases involving the Colorado Ground Water Commission <br />February 25, 2005 <br /> <br />The listing below summarizes all matters in which the Office of the Attorney General currently represents the Colorado Ground Water Commission. <br /> <br />Reinaldo gallegos, et al. Case No. 03CV1335 Designated Basin: Upper Crow Management District: Before: Hon. Roger A. Klein, Weld County District Court Attorney: Pat Kowaleski <br />Subject: The Gallegos family requested a hearing to determine whether administration and curtailment is required of the wells and junior surface water rights along Crow Creek to satisfy <br /> the Gallegos Family’s senior surface water right. At its August, 2003 meeting the Commission affirmed its Hearing Officer and concluded that the Commission has no jurisdiction over <br /> surface rights, and is not required to administer the basin based on the priority system. <br /> <br />On September 26, 2003 the Gallegos family appealed the Commission’s decision to District Court, and also brought an additional action against the State Engineer in his capacity as the <br /> administrator of surface rights. Assistant Attorney General Alexandra Davis is handling the latter litigation. <br /> <br />In the Commission litigation, we filed a Motion with the Court, asking that the Court notify and join all well permit holders who might be adversely affected if the Court were to call <br /> out permit holders, based on the Gallegos’ decreed surface right. <br /> <br />In a decision which we received on February 11, 2004, the Court agreed with us that junior well permit holders might be adversely affected, and therefore required them to be joined in <br /> the litigation. <br /> <br />Status: The Plaintiffs amended their complaint to include junior well permit holders. They served those parties, who have retained attorneys and filed responses to the complaint. The <br /> case against the State Engineer is being held in abeyance, pending a decision in the case against the Commission. A five-day trial is scheduled to begin on April 17, 2006. No new developments. <br /> <br /> <br /> <br /> <br /> <br />PEORIA CROSSING, LLC. Case No. 02-GW-18 Designated Basin: Kiowa-Bijou Management District: North Kiowa Bijou Before: Jody Grantham, Hearing Officer Attorney: Ginny Brannon <br />Subject: Peoria Crossing filed an application for determination of water right to allow <br />appropriation of designated ground water from the Laramie-Fox Hills aquifer underlying its 241.36 acre property. Peoria Crossing filed an appeal challenging the Staff’s calculation <br /> of a cylinder of appropriation for an existing well owned by LaFarge West, Inc., and the resulting decrease in the amount of allocation determined for the aquifer underlying Peoria <br /> Crossing’s property. <br /> <br />Status: A hearing was held on October, 22, 2002. Peoria Crossing, LaFarge West and the Staff <br />participated in the hearing. On December 2, 2002, the Hearing Officer issued his initial decision and found: (1) a cylinder of appropriation is not a water right, but rather a measure <br /> of the beneficial use that is the actual water right for a pre-213 well; (2) although LaFarge’s well was permitted and completed prior to implementation of the 1965 Act, the 1965 Act <br /> and modified prior appropriation doctrine apply to the determination of the final extent of LaFarge’s water right; (3) Staff’s calculation of the cylinder of appropriation for LaFarge’s <br /> well is incorrect; and (4) LaFarge does not yet have a final permit, and in order to proceed with the proper determination of the amount of water available to the Applicant, Staff must <br /> proceed with final permitting and notice of LaFarge’s water right in a separate proceeding. The Hearing Officer ordered that this matter is held in abeyance until Staff completes final <br /> permitting for LaFarge’s well, and ordered Staff to initiate final permitting within a reasonable time frame. Staff published the notice of intent to issue final permit on July 31, <br /> and August 7, 2003. LaFarge West filed a Motion to Vacate Order, which was subsequently withdrawn. On September 11, 2003, the Hearing Officer issued an order stating that the Initial <br /> Decision of the Hearing Officer is the Final Decision of the Commission. Lafarge and Staff have now settled the Lafarge case and, on January 11, 2005, the Hearing Officer directed <br /> Staff to proceed with publication of the Lafarge well permit. This will now allow for the re-examination of the amount of ground water underlying Peoria Crossing’s property. <br /> <br />WAYNE E. and frances g. booker Case No. 04-CV-2800 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Hon. David Gilbert, El Paso County District <br /> Court Attorney: Pat Kowaleski <br />Subject: Objections by the District, Cherokee Metropolitan District, and Schubert Ranches to <br />applications to relocate the wells with Permit Nos. R-16265-FP, R-16271-FP, R-16272-FP, 27560-FP, and 27585-FP <br /> <br />Status: The Applicants appealed the Staff’s evaluation of their application and requested a <br />hearing before the Commission to obtain a variance from Commission Rules. The setting of a hearing before the Hearing Officer was postponed until after the variance request hearing. <br /> The Commission denied the variance request at its February 21, 2003 meeting. A hearing in this matter was held on September 9, 2003. On September 17, 2003, the Hearing Officer issued <br /> his Initial Decision and found as follows: (1) The applications are for changes of water right pursuant to section 37-90-111(1)(g), C.R.S. and Commission Rule 7; (2) According to Commission <br /> Rule 7.3.2, there is no water available to move to the new well locations requested by the Applicant; (3) The Applicants’ request to be excluded from the requirement of including years <br /> of non-use in their historic use analysis “for good cause” pursuant to Commission Rule 7.10.1 is denied; and (4) Because there is no water available to move, the applications are denied. <br /> The Applicants filed Exceptions to the Hearing Officer’s Initial Decision, and by order dated June 15, 2004, the Commission upheld the Initial Decision. On July 15, 2004 the Applicants <br /> appealed the Commission’s decision to the El Paso County District Court, and a 5-day trial has been scheduled to begin on November 28, 2005. No new developments. <br /> <br />appeal of rules adopted by the upper black squirrel creek ground water management district Case No. 03-GW-14 Designated Basin: Upper Black Squirrel Creek Management District: Upper <br /> Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: Ginny Brannon <br />Subject: Cherokee, Meridian Ranch, Meridian Service, Paint Brush Hills and Woodmen <br />Hills Metropolitan Districts filed an appeal to the adoption of Rule Nos. 3, 17, 18, and 19 by the Upper Black Squirrel Creek Ground Water Management District. <br /> <br />Status: A prehearing conference was held on November 5, 2003. The Hearing Officer <br />determined that the Commission had no jurisdiction to hear appeals of rules regarding small capacity wells, and therefore had no jurisdiction to hear the appeal of proposed District <br /> Rule 3. The parties agreed that the remaining issues could be decided on the briefs, and therefore the hearing set for March, 2004 was vacated. <br /> <br />In April 2004 the Hearing Officer issued Findings of Fact, Conclusions of Law and Initial Decision of the Hearing Officer, whereby he ruled that, as a matter of law, the District exceeded <br /> its statutory and decisional law authority, and therefore Rules 17, 18 and 19 were null and void. On May 6, 2004 the District timely filed a request to reverse or modify the Initial <br /> Decision. On that same date the District also timely filed a Designation of the Record. Briefs were due to the Commission on August 6, 2004. <br /> <br />This case was argued before the Commission at the August 20, 2004 Commission meeting. On September 30, 2004 the Commission reversed the Hearing Officer’s ruling that the District had <br /> exceeded its statutory and decisional law authority in enacting Rules 17, 18 and 19, and remanded to the Hearing Officer for further proceedings. The Commission directed the Hearing <br /> Officer to determine whether the rules, as adopted by the District, are: 1) reasonable; 2) constitute a taking without just compensation in violation of the United States and Colorado <br /> Constitutions; and, 3) violate the Equal Protection Clause of the United States and Colorado Constitutions. Oral arguments were conducted before the Hearing Officer on December 16, <br /> 2004. <br /> <br />On February 4, 2005, the Hearing Officer issued an Order in which he determined that the Rules do not violate the takings or equal protection provisions of the United States or Colorado <br /> Constitutions and are reasonable as they apply to non-Denver Basin wells within the District. The Rules are not applicable, however, to wells in the Denver Basin because they are contrary <br /> to the mandate of the legislature concerning the allowable allocation and use of ground water in the Denver Basin. <br /> <br /> <br />appeal of rules adopted by the upper black squirrel creek ground water management district Case No. [Unassigned] Designated Basin: Upper Black Squirrel Creek Management District: <br /> Upper Black Squirrel Creek Before: El Paso County District Court Attorney: Pat Kowaleski <br />Subject: Cherokee, Meridian Ranch, Meridian Service, Paint Brush Hills and Woodmen <br />Hills Metropolitan Districts filed an appeal to the adoption of Rule Nos. 3, 17, 18, and 19 by the Upper Black Squirrel Creek Ground Water Management District. <br /> <br />Status: This is the same matter referred to in the previous item. After the Commission issued its Remand Order, the Applicants, on October 29, 2004, filed an appeal with the District <br /> Court in El Paso County. The Commission filed a Motion to Dismiss the District Court action on the grounds that the Commission has not yet completed its review, and the matter is therefore <br /> not ripe for an appeal to District Court. The District Court has put the matter on hold until the Hearing Officer and the Commission act on the remand to the Hearing Officer. <br /> <br /> <br />Hunker, et al. v. Upper Black SquirRel and Ground Water Commission Case No. 04-CV-4205 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: El <br /> Paso County District Court Attorney: Pat Kowaleski <br />Subject: Timothy Hunker and several Metropolitan Districts that are regulated by the Upper Black Squirrel Creek Ground Water Management District, (the “District”) have filed an action <br /> in El Paso County District Court asserting that the five Divisions within the District need to be reapportioned. The background is that in 1968 a petition was filed with the Ground <br /> Water Commission to establish the District. Pursuant to the statute, § 37-90-121(1)(b) C.R.S., the Divisions within the district were to be “as nearly equal in size as may be practicable, <br /> and considering the population thereof,…” <br />Pursuant to statute the Commission set a public hearing to consider creation of the District, and, after that hearing, the District was formed. The Plaintiffs assert that the Divisions <br /> within the District are no longer “nearly equal.” They assert, as an example, that of the 11,104 taxpaying electors in the District, one division has 3631 electors while another has <br /> only 473. The Plaintiffs assert that this is a “violation of the principal of ‘one man-one vote.’” <br />The lawsuit says that the Commission, while not having authority to oversee the redistricting, is a necessary party to the litigation because the Commission approved the original divisions <br /> within the District. The specific assertion involving the Commission is contained at Par. 6 of the Complaint: <br />“6. The Colorado Ground Water Commission (‘the Commission’) oversees the designated groundwater basins in the State of Colorado and is the administrative body to which certain matters <br /> concerning the designated basins are appealed to. The Commission authorized the designation of the Basin, the formation of the Black Squirrel, and approved the division of the Black <br /> Squirrel into the five (5) election divisions and therefore, is a necessary party to this action; however, this Court, and not the Commission, has jurisdiction to oversee the redistricting <br /> of the Black Squirrel.” <br />Status: The lawsuit was served on Wednesday, October 20 and the matter is on hold as the Plaintiff and the District try to resolve their differences. <br /> <br /> <br />lafarge west, inc. Case No. 03-GW-15 Designated Basin: Kiowa-Bijou Management District: North Kiowa-Bijou Before: Jody Grantham, Hearing Officer Attorney: Ginny Brannon <br />Subject: LaFarge West filed an objection to the approval of its final permit. LaFarge objected to the utilization of 11.3 acre-feet as the measure of beneficial use and requested 31 <br /> acre-feet be utilized as the appropriate measure. <br /> <br />Status: A hearing was held on February 2, 2004. LaFarge and the Staff participated in the hearing. On December 23, 2004, the Staff for the Ground Water Commission and Lafarge West <br /> entered into a stipulation in which they agreed that the well would be permitted for 14.1 acre-feet as the measure of beneficial use. On January 11, 2005, the Hearing Officer ordered <br /> Staff to proceed with publication of Well Permit No. 9502-F as agreed by the parties. <br /> <br />john and rita field Case No. 03-GW-18 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: <br /> Tanya Light <br />Subject: Objection by the Upper Black Squirrel Creek Ground Water Management <br />District to the application to change the allowed beneficial uses for Determination of Water Right No. 273-BD. <br /> <br />Status: A hearing before the Hearing Officer had been set for April 23, 2004. On March 26, 2004 the District withdrew its objection. On April 2, 2004 the Hearing Officer dismissed <br /> the case and remanded to the Staff for administrative action. The change was approved on September 7, 2004. This case is closed. <br /> <br /> <br /> <br /> <br />APPEALS OF ADOPTION OF RULE 20 BY THE UPPER BLACK SQUIRREL CREEK GROUND WATER MANAGEMENT DISTRICT Case No. 04-GW-02 Designated Basin: Upper Black Squirrel Management District: Upper <br /> Black Squirrel Before: Jody Grantham, Hearing Officer Attorney: Ginny Brannon <br />Subject: On June 1, 2004, the Upper Black Squirrel Creek Groundwater Management District adopted a Rule (“Rule 20”). Rule 20 concerns the procedural and substantive methods by which <br /> the District proposes to enforce priorities amongst well owners within the District. In July 2004, the Cherokee Metropolitan District and Wayne and Frances G. Booker filed appeals. <br /> The primary issue is whether Rule 20’s technical and study analysis provisions sufficiently adhere to the tenets of a modified prior appropriation doctrine. The Hearing Officer issued <br /> an Order on February 4, 2005, in which he found that the standard of review is de novo. <br /> <br />Status: The hearing is scheduled for April 4 & 5, 2005. <br />3 <br /> <br /> <br />6 <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />AgendaFeb05.doc <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />Determine quorum <br /> <br />Review and approval of agenda items <br /> <br />Approval of Minutes for Meeting of November 19, 2004 <br /> <br />Report of the Executive Director by Hal Simpson <br /> <br />Presentation on South Platte River Decision Support System by Ray Alvarado of the Colorado Water Conservation Board Staff <br /> <br />Rulemaking hearing to allow the recognition of the permanent surrender through water conservation programs of the ability to develop future water rights and/or the ability to irrigate <br /> a given tract of land by Suzanne Sellers <br /> <br />Discussion on potential rulemaking regarding abandonment proceedings for unutilized wells that have final permits. <br /> <br />Discussion on potential rulemaking regarding prohibiting the withdrawal of groundwater from wells within the Republican River Water Conservation District (RRWCD) boundary for failure <br /> to pay RRWCD fees. <br /> <br />Staff Report by Suzanne Sellers <br /> <br />Report of the Attorney General by Ginny Brannon <br /> <br />Management District Reports: <br /> a. Frenchman e. WY i. Southern High Plains <br /> b. Sand Hills f. Arikaree j. North KiowaBijou <br /> c. Marks Butte g. Plains k. Upper Black Squirrel <br /> d. Central Yuma h. East Cheyenne l. Upper Big Sandy <br />Lost Creek <br />Old Business <br /> <br />New Business <br /> <br />Commission in Executive Session (12:00-1:00) Concerning the Following: <br /> <br />Upper Black Squirrel Creek Ground Water Management District v. the Colorado Ground Water Commission, the State Engineer and Cherokee Metropolitan District, El Paso County, District Court <br /> Case No. 98CV2331, District Court Case No. 53483-B, and Division 2 Water Court Case Nos. 88-CW-049 and 98-CW-080 regarding the “Sweetwater Stipulation”. <br /> <br />Adjournment <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />NOTICE OF GENERAL MEETING OF THE <br />COLORADO GROUND WATER COMMISSION <br /> <br />10:00 a.m., Friday, February 25, 2005 <br /> <br />1313 Sherman St. Rm. 318 <br />Denver, CO 80203 <br /> <br /> <br />A G E N D A <br /> <br /> <br /> <br /> <br /> <br />DBRulesFeb2005withFigs.pdf <br />STATE OF COLORADO GROUND WATER COMMISSION Hal D. Simpson Executive Director 1313 Sherman Street Denver, Colorado 80203 RULES AND REGULATIONS FOR THE MANAGEMENT AND CONTROL OF DESIGNATED <br /> GROUND WATER 2 CCR 410-1 Effective Date: May 1, 1992 Amended: March 30, 1995 Re-amended: April 1, 1997 Re-amended: February 1, 2001 Re-amended: June 30, 2003 Re-amended: April 30, <br /> 2004 Re- amended: February 1, 2005 DBRulesFeb2005withFigs.doc RULES AND REGULATIONS FOR THE MANAGEMENT AND CONTROL OF DESIGNATED GROUND WATER TABLE OF CONTENTS Rule <br /> Page 1 - Title ........................................................................................ <br />.......................................... 1 2 - Authority............................................................................................................................ <br /> 1 3 - Scope and Purpose........................................................................................................... 1 4 - Definitions............................................ <br />.............................................................................. 1 5 - Appropriation of Designated Ground Water....................................................................... <br />. 5 6 - Replacement Well Permits................................................................................................19 7 - Change of Rights to Designated Ground Water............... <br />..................................................20 8 - Flow Meter Requirements.................................................................................................28 <br /> 9 - Coordination with Ground Water Management Districts.....................................................28 10 - Severability................................................................. <br />.....................................................29 11 - Variance..........................................................................................................................29 <br /> 12 - Revision ..........................................................................................................................30 13 - Effective Date.................................... <br />..............................................................................30 RULES AND REGULATIONS FOR THE MANAGEMENT AND CONTROL OF DESIGNATED GROUND WATER RULE 1 TITLE 1.1 The <br /> title of these rules and regulations is "Rules and Regulations for the Management and Control of Designated Ground Water." The short title is "Designated Basin Rules," and may be referred <br /> to herein collectively as the "Rules" or individually as a "Rule." RULE 2 AUTHORITY 2.1 These Rules are promulgated pursuant to the authority of the Colorado Ground Water Commission <br /> in the "Colorado Ground Water Management Act," Title 37, Article 90, Colorado Revised Statutes, primarily Sections 37-90-107, 108, 109 and 111, C.R.S. RULE 3 SCOPE AND PURPOSE 3.1 <br /> The rules establish the management criteria or allowable rate of depletion for ground water in each designated ground water basin. Such management criteria will be used as the basis <br /> for the review of applications to use ground water pursuant to Section 37-90-107, C.R.S. The management criteria establish the basis to determine whether a proposed permit would result <br /> in unreasonable impairment to existing water rights. 3.2 The rules for replacement wells will expedite the processing of replacement applications and establish limits to differentiate <br /> between a replacement well pursuant to Section 37-90-111(1)(c), C.R.S. and a change of water right pursuant to Section 37-90-111(1)(g), C.R.S. 3.3 The rules establish equitable standards <br /> for the review of applications to change a right to use designated ground water pursuant to Section 37-90-111(1)(g), C.R.S. These standards also set limitations necessary to prevent <br /> material injury. 3.4 The rules establish reasonable guidelines for water measuring devices to be required as a condition of a permit or change application approval. 3.5 The rules seek <br /> to improve communication and coordination between the Ground Water Commission and the Designated Ground Water Management Districts. 3.6 The rules are intended to standardize policies <br /> and procedures of the Ground Water Commission, to make information as widely available as possible, and to ensure uniform and consistent action by the Commission. 3.7 The rules are <br /> not intended to change any terms or conditions of any permits already issued or of any approvals already granted. However, the State Engineer or the Commission, in the exercise of <br /> their statutory authority, may impose certain additional terms or conditions on such previously issued permits or approvals. RULE 4 DEFINITIONS 4.1 The following terms are defined <br /> in Section 37-90-103, C.R.S., and these terms shall have identical meaning where used in these Rules: RULES AND REGULATIONS FOR THE MANAGEMENT Page 2 AND CONTROL OF DESIGNATED GROUND <br /> WATER Alternate Point of Diversion Well, Aquifer, Artesian Well, Board or Board of Directors, Designated Ground Water, Designated Ground Water Basin, Ground Water Commission or Commission, <br /> Ground Water Management District or District, Historical Water Level, Person, Replacement Well, Subdivision, Supplemental Well, Underground Water and Ground Water, Waste, and Well. <br /> 4.2 Specific Definitions - Unless expressly stated otherwise the following terms when used in these Rules shall have the meaning indicated in this Rule. 4.2.1 "Additional Well" Means <br /> a well permitted under Rule 5.3.9 wherein an additional well, together with the previously permitted well(s) withdrawing ground water under provisions of Rule 5.3 or 5.4 may withdraw <br /> the allowed average annual amount of withdrawal of the previously permitted well(s). 4.2.2 "Allowed Maximum Annual Amount of Withdrawal" means the maximum amount of water in acre-feet <br /> that a permittee may withdraw from a well in a calendar year. 4.2.2.5 "Allowed Average Annual Amount of Withdrawal" means the average amount of water in acre-feet that a permittee may <br /> withdraw from a well in a calendar year. 4.2.3 "Applicant" means that person or entity who applies to the Ground Water Commission for a well permit or for a change in water right or <br /> for any other permitting action from the Commission pursuant to these Rules. 4.2.4 "Appropriation" means the application of a specified portion of the designated waters of the state <br /> to a beneficial use pursuant to the procedures prescribed by law. 4.2.5 "Artificial Recharge" means the intentional introduction of water into any underground formation. 4.2.6 "Bedrock <br /> Aquifers" means Denver Basin bedrock aquifers as identified in Rule 5.3.1 and those other aquifers within the Designated Basins considered for appropriation under Rule 5.4. 4.2.7 "Beneficial <br /> Use" is the use of that amount of water that is reasonable and appropriate under reasonably efficient practices to accomplish without waste the purpose for which the appropriation is <br /> lawfully made and, without limiting the generality of the foregoing, includes the impoundment of water for recreational purposes, including fishery or wildlife. 4.2.8 "Change of Water <br /> Right" means a change in acreage served, volume of appropriation, pumping rate, well location, place, time or type of use by any water right, either conditional or final, or any combination <br /> of these changes including commingling of waters under such water rights. 4.2.9 "Commission Staff or Staff" means an employee or agent of the Colorado Division of Water Resources authorized <br /> by the State Engineer to act or assist in discharging the duties of the Commission. 4.2.10 "Conditional Water Right" means a right to perfect a water right under the provisions of the <br /> law with a certain priority upon the completion of the appropriation upon which such water right is to be based. RULES AND REGULATIONS FOR THE MANAGEMENT Page 3 AND CONTROL OF DESIGNATED <br /> GROUND WATER 4.2.11 "Confining Layer" means all or part of a formation which impedes the flow of ground water from an adjacent aquifer. 4.2.12 "Confined Well" means a well completed <br /> in or producing from an aquifer or portion of an aquifer in which the static water level in the well rises due to hydrostatic pressure above where it was first encountered in the aquifer. <br /> 4.2.13 "Contiguous Parcel" means that portion of the overlying land that is in contact with itself so that no part is totally separated. 4.2.14 "Crop Consumptive Use" means the total <br /> amount of water taken up by vegetation for transpiration or building of plant tissue, plus the evaporation from the adjacent soil or from intercepted precipitation on the plant foliage. <br /> 4.2.15 "Cylinder of Appropriation" means a hypothetical cylinder centered around the location of an existing or proposed well which, for a specific aquifer, contains a volume of water <br /> equal to one hundred times the annual appropriation of an existing well or the allowed average annual amount of withdrawal of a proposed well. The radius of the cylinder of appropriation <br /> is computed from the following formula: Radius of Cylinder (ft.) = the square root of: 43,560 (ft. sq./acres) x withdrawal (acre ft./yr.) x 100 (yr.) Specific yield <br /> x saturated aquifer materials (ft.) x 3.1416 where withdrawal means the annual appropriation or allowed average annual amount of withdrawal. 4.2.16 "Denver Basin Bedrock Aquifers" <br /> or "Denver Basin Aquifers" means the Upper Dawson, Lower Dawson, Denver, Upper Arapahoe, Lower Arapahoe and Laramie-Fox Hills aquifers as defined in the Denver Basin Rules, 2 CCR 402-6. <br /> 4.2.17 "Historic Withdrawal" means the average annual volumetric amount of ground water withdrawn by a well including any replacement well(s) during the life of the well permit. This <br /> amount shall be computed under the provisions of Rule 7.10 unless it is a bedrock aquifer well, where the provisions of Rule 7.1.3 shall apply. These terms differ from the term "the <br /> historic depletion of the aquifer " in the sense that the amount of historic depletion of the aquifer is equal to the amount of historic withdrawal from the aquifer minus the portion <br /> of the withdrawal which percolates back to the aquifer. 4.2.18 " Large Capacity Well" means any well which is permitted to put designated ground water to beneficial use provided the <br /> said permit is not for a small capacity well pursuant to Section 37-90-105, C.R.S. 4.2.19 "Nontributary Ground Water" means that ground water, the withdrawal of which will not, within <br /> one hundred years, deplete the flow of a natural stream, or its alluvial aquifer, at an annual rate greater than one-tenth of one percent of the annual rate of withdrawal. The determination <br /> of whether ground water is nontributary shall be based on aquifer conditions existing at the time of permit application; except that, in recognition of the de minimis amount of water <br /> discharging from the Dawson, Denver, Arapahoe, and Laramie-Fox Hills aquifers into RULES AND REGULATIONS FOR THE MANAGEMENT Page 4 AND CONTROL OF DESIGNATED GROUND WATER surface streams <br /> due to artesian pressure, in determining whether ground water of the Dawson, Denver, Arapahoe, and Laramie-Fox Hills aquifers is nontributary, it shall be assumed that the hydrostatic <br /> pressure level in each such aquifer has been lowered at least to the top of that aquifer throughout that aquifer. 4.2.20 "Overappropriated Aquifer" means an aquifer for which the net <br /> average annual depletion rate of ground water is considered to be in excess of the allowable net average annual depletion rate for that aquifer as set by the Commission. 4.2.21 "Overlying <br />