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STATEMENT OF BASIS, PURPOSE, AND SPECIFIC STATUTORY AUTHORITY Department of Natural Resources Office of the State Engineer Produced Nontributary Ground Water Rules 2 CCR 402-17 This statement pertains to the adoption by the State Engineer of rules and regulations to assist his administration of wells that dewater geologic formations by withdrawing nontributary ground water to facilitate or permit the mining of minerals. Background Pursuant to the Colorado Ground Water Management Act, §§ 37-90-101 through-143, C.R.S. (the "Ground Water Act"), the State Engineer must require all water users to obtain permits for any"well," defined as "any structure or device used for the purpose or with the effect of obtaining ground water for beneficial use from an aquifer." C.R.S. § 37-90-137(1); C.R.S. § 37-90-103(21)(a). Pursuant to the Water Right Determination and Administration Act of 1969, §§ 37-92-101 through-602, C.R.S. (the"Water Rights Act"), the State Engineer must protect existing water rights against injury by curtailing out-of-priority diversions of ground water that cause material injury to vested water rights. C.R.S. § 37-92-502. Simpson v. Bijou, 69 P.3d 50, 67 (Colo. 2003). Absent a showing to the contrary, ground water in Colorado is presumed to be "tributary," or hydraulically connected to surface water so as to require administration within the prior appropriation system. Simpson v. Bijou Irrigation Co., 69 P.3d 50, 57 n.7 (Colo. 2003). Pursuant to the Water Rights Act, the State Engineer must protect existing water rights against injury by curtailing injurious out-of-priority diversions of tributary ground water that are not replaced under an approved augmentation plan or substitute water supply plan or otherwise authorized under law. C.R.S. § 37-92-502. Simpson v. Bijou, 69 P.3d 50, 67 (Colo. 2003). Ground water may instead be "nontributary," defined as "that ground water, located outside the boundaries of any designated ground water basins in existence on January 1, 1985, the withdrawal of which will not, within one hundred years, deplete the flow of a natural stream, including a natural stream as defined at C.R.S. §§ 37-82-1.01 (2) and 37- 92-102 (1) (b) at an annual rate greater than one-tenth of one percent of the annual rate of withdrawal." C.R.S. § 37-90-103(10.5). Under Colorado law, ground water that has been determined to be nontributary is not administered within the prior appropriation system. See C.R.S. § 37-92-305(11). Therefore, a parry seeking to operate a well to withdraw nontributary ground water is not required to obtain an augmentation plan or Produced Nontributary Ground Water Rules 2 CCR 402-17, Statement of Basis and Purpose -1-