Title: Colorado - Chapter 148, Water Rights and Irrigation
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Title: Colorado - Chapter 148, Water Rights and Irrigation
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Abstract: Jake Varn Collection - Colorado - Chapter 148, Water Rights and Irrigation (JDV Box 39)
General Note: Box 29, Folder 23 ( Water Statutes - Other States - 1900s ), Item 8
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CHAPTER 148

WATER RIGHTS AND IRRIGATION
Cross references: For water rights provisions in the constitution, see article XVI,
sections 5 to 8 and annotations thereunder. For exemption from taxation of ditches,
canals and flumes, see 137-1-3. For definition of an "inch" of water, see 152-1-28. For
water compacts, see chapter 149. For conservancy and irrigation districts, see chapter
150. For conveyance of water rights as real property, see 118-1-2. For change of point
of diversion, see 148-9-22 et seq.
Art. 1. Diversion of waters from state, 148-1-1 to 148-1-2.
Art. 2. Appropriation and use of water, 148-2-1 to 148-2-8.
Art. 3. Rights-of-way and ditches, 148-3-1 to 148-3-14.
Art. 4. Maps and plats, 148-4-1 to 148-4-7.
Art. 5. Reservoirs, 148-5-1 to 148-5-29.
Art. 6. Exchange of water, 148-6-1 to 148-6-5.
Art. 7. Responsibility of user or owner, 148-7-1 to 148-7-25.
Art. 8. Charge for delivery of water, 148-8-1 to 148-8-11.
Art. 9. Adjudication act of 1943, 148-9-1 to 148-9-27.
Art. 10. Adjudication and limitation act of 1919, 148-10-1 to 148-10-9.
Art. 11. State engineer, 148-11-1 to 148-11-21.
Art. 12. Irrigation divisions-division engineers, 148-12-1 to 148-12-15.
Art. 13. Water districts, 148-13-1 to 148-13-70.
Art. 14. Special jurisdiction of courts, 148-14-1 to 148-14-6.
Art. 15. Water commissioners, 148-15-1 to 148-15-12.
Art. 16. Offenses, 148-16-1 to 148-16-4.
Art. 17. State canals and reservoirs, 148-17-1 to 148-17-16.
Art. 18. Underground water, 148-18-1 to 148-18-15.
Art. 19. Limitation of actions-decrees, 148-19-1.

ARTICLE 1

Diversion of Waters from State
148-1-1. Unlawful to divert water for ap- 148-1-2. Officials charged with enforce-
plication outside of state. ment.
148-1-1. Unlawful to divert water for application outside of state.-
For the purpose of aiding and preserving unto the state of Colorado and all
its citizens the use of all the waters of the springs, lakes, ponds, creeks,
rivers, streams and watercourses of this state, which waters do not increase
with the growth of population and which are necessary for the health and
prosperity of all the citizens of the state of Colorado, and for the growth,
maintenance and general welfare of the state, it shall be unlawful for any
person, corporation or association to divert, carry or transport by ditches,
canals, pipes, conduits, natural streams or watercourses, the waters of
any springs, reservoir, lake, pond, creek, river, stream or watercourse of
this state into any other state for use therein.
Source: L. 17, p. 539, 1; C. L. 1618; CSA, C. 90, 1; CRS 53,
147-1-1.








APPROPRIATION AND USE OF WATER


General:
An injunction action restraining the
state engineer of Colorado from inter-
fering with a Nebraska corporation's ap-
propriation of water in an interstate
stream with headgate in Colorado for
use in Nebraska, theretofore long used and
recognized, was granted. The court held
priority of appropriation in such circum-
stance gives superiority of right on inter-
state streams without regard to state lines,


where both states recognize the doctrine
of priority. Weiland v. Pioneer Irrigation
Co. (1922) 259 U. S. 498, 66 L. Ed. 1027,
42 S. Ct. 568.
The courts of this state have no juris-
diction to award priorities to a ditch in-
tended to irrigate lands outside the state
although the ditch has its headgate within
the state. Lamson v. Vailes (1900) 27 C.
201, 61 P. 231.


148-1-2. Officials charged with enforcement.-It shall be the duty of
the state engineer, the division engineers and the water commissioners
of this state, to see that the waters of the state are preserved for the use
and benefit of the citizens and inhabitants of the state for its growth,
prosperity and general welfare, and to prevent the waters thereof from
being diverted, carried, conveyed or transported by ditches, canals, pipes,
conduits, natural streams or watercourses, into other states for use therein.
Upon its being brought to the knowledge of the state engineer of Colorado
that any person, corporation or association is carrying or transporting any
of such waters into any other state for use therein, or is intending so to
do, it shall be his duty to immediately call the matter to the attention of
the attorney general, in behalf of and in the name of the state, who shall
apply to any district court or to the supreme court of the state of Colorado,
for such restraining orders or injunctions, both preliminary and final, as
may be necessary to enforce the provisions of this section and section
148-1-1, and jurisdiction is conferred upon said courts for such purposes.

Source: L. 17, p. 539, 2; C. L. 1619; CSA, C. 90, 2; CRS 53, 147-


General:
As between Colorado and New Mexico,
both of which recognize the doctrine of
appropriation and priority, a water right
may be acquired by diversion of water
at a point, on an interstate stream in one
state, and its application to beneficial use


made in the other state; and in such cases
neither state has extraterritorial jurisdic-
tion as to proceedings for change of point
of diversion or use, which are to be ef-
fected in the other state. Lindsey v. Mc-
Clure (1943) 136 F.2d 65.


ARTICLE 2

Appropriation and Use of Water


Rights of o w n e r of riparian
land.
Priority of right to spring water.
Appropriation of natural springs.
Not to impair vested rights.
Interference with flow dam-
ages.


148-2-6.

148-2-7.
148-2-8.


Water for domestic purposes
shall not be used for irriga-
tion.
Penalty for misapplication.
Right to place wheels on
streams.


148-2-1. Rights of owner of riparian land.-All persons who claim, own
or hold a possessory right or title to any land or parcel of land within the
boundary of the state of Colorado, as defined in the constitution of said
state, when those claims are on the bank, margin or neighborhood of any
stream of water, creek or river, shall be entitled to the use of the water of


148-2-1.
148-2-2.
148-2-3.
148-2-4.
148-2-5.


148-2-1







WATER RIGHTS AND IRRIGATION


said stream, creek or river for the purposes of irrigation, and making said
claims available to the full extent of the soil, for agricultural purposes.

Source: L. 1861, p. 67, 1; R. S. p. 363, 1; G. L. 1372; G. S. 1711;
R. S. 08, 3165; C. L. 1622; CSA, C. 90, 5; CRS 53, 147-2-1.


General:
The common law doctrine of riparian
rights never obtained in Colorado; nor did
the federal government adopt it as re-
gards the public domain; in conveying land
to a patentee, the federal government
is presumed to have taken the position of
a private owner, and therefore a patentee
of land in Colorado takes title subject to
the appropriation system. Empire Water
& Power Co. v. Cascade Town Co. (1913)
205 F. 124. (Compare: Idem. (1910) 181
F. 1011.)
Bigger v. Empire Water & Power Co.
(1913) 205 F. 130.
In choosing the appropriation doctrine
Colorado acted within the limits of her
authority both as a territory and as a
state; and, so far as concerns public lands,
the appropriation doctrine was recognized
and sanctioned by congress by the enact-
ment of Rev. St. sections 2339 and 2340.
Snyder v. Colorado Gold Dredging Co.
(1910) 181 F. 62.
Platte Water Co. v. Northern Colorado Inv.
Co. (1889) 12 C. 525, 21 P. 711.
As against another appropriator with-
out a decree, a senior appropriator without
a decree is not asserting common law
riparian rights when he alleges riparian
ownership plus diversion and beneficial
use. Humphreys Tunnel & Mining Co. v.
Frank (1909) 46 C. 524, 105 P. 1093.
A senior riparian owner who has di-
verted and used all the waters in a stream
has a continuing right to all the waters;
a junior riparian appropriator therefrom
has a right only to such water as the
senior does not use. Wellington v. Beck
(1908) 43 C. 70, 95 P. 297.
The right to appropriate water by a
city for domestic and municipal purposes
does not depend upon the land of its use;
such water may be transported to non-
riparian lands for those purposes. Town of
Sterling v. Pawnee Ditch Extension Co.
(1908) 42 C. 421, 94 P. 339. (Compare:
Broadmoor Dairy & Livestock Co. v. Brook-
side Water & Irrigation Co. (1898) 24 C.
541, 52 P. 732.)
Coffin v. Left Hand Ditch Co. (1882) 6
C. 443.
Section 139-32-1(78) gives towns simi-
lar power to those of individuals hereun-
der for domestic water; such power does
not include diversion of water for such


municipal uses, as against prior appropri-
ations of individuals for domestic and ir-
rigation purposes, without compensating
the prior appropriators. Town of Sterling
v. Pawnee Ditch Extension Co. (1908) 42
C. 421, 94 P. 339.
Montrose Canal Co. v. Loutsenhizer Ditch
Co. (1896) 23 C. 233, 48 P. 532.
The adoption of the common law by
135-1-1 did not include the doctrine of
riparian rights; and the water right
granted under this section to riparian own-
ers to divert water for irrigation is sub-
ject to prior appropriation; this section
does not vest title to stream waters in the
owners of the lands thereon. CTippen v.
White (1901) 28 C. 298, 64 P. 184.
Hammond v. Rose (1888) 11 C. 524, 19 P.
466.
Thomas v. Guiraud (1883) 6 C. 532.
Coffin v. Left Hand Ditch Co. (1883) 6 C.
443.
Although common-law riparian rights do
not exist in Colorado, a riparian owner
may enjoin the diversion of water by one
who puts the water to no beneficial use
under a false claim that he is entitled
thereto. U. S. Freehold Land & Emigra-
tion Co. v. Gallegas (1898) 89 F. 769.
For manufacturing, mining or mechani-
cal purposes a riparian owner may use
waters of running streams on his own
premises, allowing such waters by return
to go down to subjacent owners in natural
stream channel; a placer location ex vi
termini imports appropriation of all wa-
ters covered by it so far as necessary for
working the claim, especially where the lo-
cation covers both banks of the stream.
Schwab v. Beam (1898) 86 F. 41.
The riparian owner's domestic water
right protected by section 6, article XVI
of the Colorado constitution is the right
"to take water for himself, his family or
his stock, and the like"; such right must
be exercised in connection with the ripar-
ian land and cannot be severed, nor divert-
ed by pipeline for use on other lands.
Broadmoor Ditch Co. v. Brookside Water
& Irrigation Co. (1898) 24 C. 541, 52 P.
792.
Montrose Canal Co. v. Loutsenhizer Ditch
Co. (1896) 23 C. 233, 48 P. 532.
The provisions of sections 5 and 6, arti-
cle XVI of the Colorado constitution are
not retroactive and do not authorize inter-


148-2-1


526








APPROPRIATION AND USE OF WATER


ference with the rights of prior appropria-
tors for irrigation purposes whose rights
vested before the adoption of the constitu-
tion, in order to supply later comers with
water for domestic uses. Armstrong v.


Larimer Co. Ditch Co. (1891) 1 C. A. 49,
27 P. 235.
Cited:
Black v. Taylor (1953) 128 C. 449, 264
P.2d 502 (annot. 148-2-2).


148-2-2. Priority of right to spring water.-All ditches constructed for
the purpose of utilizing the waste, seepage or spring waters of the state,
shall be governed by the same laws relating to priority of right as those
ditches constructed for the purpose of utilizing the water of running
streams; provided, that the person upon whose lands the seepage or spring
waters first arise, shall have the prior right to such waters if capable of
being used upon his lands.


Source: L. 89, p. 215, 1; R. S.
20; CRS 53, 147-2-2.
General:
Spring and seepage water, when once it
has been established that they are tribu-
tary to a stream, cannot be interrupted in
their course of diversion from the stream,
except as subject to prior appropriations
from the stream; nor does a decree for
reservoir storage constitute an appropria-
tion of water rights. Cline v. Whitten
(1962) 150 C. 179, 372 P.2d 145.
An owner of spring water rights is en-
titled to injunctive relief against any one
who interferes with, and threatens to con-
tinue to interfere with, the exercise of such
rights; and the contention that only own-
er's adjudicated water rights can be so
protected is without merit, since adjudica-
tion does not create but only confirms as
evidence rights previously acquired. Cline
v. Whitten (1960) 144 C. 126, 355 P.2d 306.
Use of water, springs and ponds located
on land and tributary to streams may be
appropriated by the landowners; and wa-
tering livestock and other domestic uses
constituted an appropriation for beneficial
use. An action will lie to enjoin a town
from intersecting and diverting water from
the source of such springs. Such an action
between parties as to the use of water is
not an adjudication, and the district court
in and for the county in which the land is
situated has jurisdiction. Town of Genoa
v. Westfall (1960) 141 C. 533, 349 P.2d
369.
The statute giving a landowner the right
to spring water does not mean a prior
right as against a right established by
prior appropriation (citing Nevius v.
Smith (1929) 86 C. 178, 279 P. 44); but
such owner of land who has used such
water has made an appropriation thereof,
valid and to be protected by injunction, as
against an adjoining landowner subse-
quently pumping subterranean waters
which interfere with the spring waters so
appropriated. Karl F. Hehl Engineering


08, 3177; C. L. 1637; CSA, C. 90,

Co. v. Hubbell (1955) 132 C. 96, 285 P.2d
593.
1. Where both parties were owners of
land containing a valley or swale underlaid
with subterranean water originating from
seepage, underflow and return waters
through precipitation on adjoining terri-
tory, all of which waters, if not interfered
with would become tributary to a natural
stream, such waters are appropriable; and
the owner of upper lands may not by drain-
age ditches cut off the lower owner and
prior appropriator and use the drainage
water on other lands in another watershed
where the right of drainage could have
been perfected without damage to the low-
er and prior appropriator; and where the
water rights of neither party have been
adjudicated, neither can complain or take
advantage of nonadjudication.
2. Seepage, waste and spring waters in
swamp lands, tributary to a stream, may
be appropriated by drainage by the owner
of such lands subject to the rights of
senior appropriators from the stream; and
thus appropriated, may be used for irriga-
tion and domestic purposes. Black v. Tay-
lor (1953) 128 C. 449, 264 P.2d 502.
Spring and seepage water which is trib-
utary to a stream is subject to appropria-
tion the same as other water of the stream;
and the fact the flow thereof has been
increased by irrigation works at a higher
level, diverted from another water shed,
will not avail a junior appropriator on the
theory of new water added to the stream.
Coryell v. Robinson (1948) 118 C. 225,
194 P.2d 342.
Clark v. Ashley (1905) 34 C. 285, 82 P.
588.
Ditches constructed for using waste
spring and seepage water are governed
by the laws relating to priority of right
just as are ditches built for using waters
of running streams. Archuleta v. Boulder


148-2-2


527









WATER RIGHTS AND IRRIGATION


& Weld County Ditch Co. (1948) 118 C.
43, 192 P.2d 891.
The proviso of this section does not ap-
ply where seepage waters are tributary
to a natural stream; and where such con-
dition is in issue, the burden of proof is
on the party asserting the seepage waters
are not tributary. DeHaas v. Benesch
(1947) 116 C. 344, 181 P.2d 453.
This section confers no right of appro-
priation for surface drainage waters from
the irrigation of adjoining lands; but as
against the owner of such lands, forty
years' adverse use of seepage waters from
his land perfects a usufructuary right to
such seepage paramount to the owner's
water rights therein. Webster v. Lomas
(1944) 112 C. 74, 145 P.2d 978.
Lomas v. Webster (1942) 109 C. 107, 122
P.2d 248.
Burkart v. Meiburg (1906) 37 C. 187, 86
P. 98.
As between successive appropriators of
seepage, spring and underground waters,
where such waters are tributary to a nat-
ural stream, junior appropriators thereof
may enjoin the appropriator on whose
lands the waters first arise from interfer-
ing with their supply; in such case, this
section has no application; the subsequent
appropriators can be deprived of their
rights only upon compensation or with
their consent. Faden v. Hubbell (1933) 93
C. 358, 28 P.2d 247.
Nevius v. Smith (1929) 86 C. 178, 279 P.
44.
Comstock v. Ramsay (1913) 55 C. 244, 133
P. 1107.
Seepage escaping from a reservoir, and
naturally returning to the stream from
which it was taken, is regarded as a part
of that stream; such water belongs to
prior appropriators and is not subject to
appropriation except as stream water.
Rio Grande Reservoir & Ditch Co. v. Wag-
on Wheel Gap Improvement Co. (1929) 68
C. 437, 191 P. 129. (Compare: Ironstone
Ditch Co. v. Ashenfelter (1914) 57 C. 31,
140 P. 177.)
Trowell Land & Irrigation Co. v. Bijou
Irrigation Dist. (1918) 65 C. 202, 176
P. 292.
Comstock v. Ramsay (1913) 55 C. 244, 133
P. 1107.
Waters of a ditch constructed to drain
a considerable extent of territory, which
on the evidence would never have reached
the Rio Grande river except by artificial
means, may be appropriated from the
ditch and applied to beneficial use; and
the fact that for two years the drainage
waters had been turned into the stream


for the purpose of draining the land, does
not make them a part of the stream as to
antedating stream appropriators. San
Luis Valley Irrigation Dist. v. Prairie
Ditch Co. & Rio Grande Drainage Dist.
(1928) 84 C. 99, 269 P. 533.
Evidence held sufficient to show that the
flow of the spring involved was too slight
ever to reach a natural watercourse, thus
not subject to appropriation, except by
owner of land upon which it arose. Haver
v. Matonock (1926) 79 C. 194, 244 P. 914.
The declaratory judgments act is appli-
cable to a dispute over the right to use
spring waters which are not tributary to
a natural stream; the court in such a con-
troversy will not take judicial notice that
a spring is tributary to a natural stream
when the complaint alleges the reverse.
Colorado & Utah Coal Co. v. Walter
(1924) 75 C. 489, 226 P. 864.
The rule as to one who artificially de-
velops and turns into a natural stream
water which would not otherwise have
reached it, has no application as to seep-
age and underground waters which inevi-
tably must have reached the stream at
some point. Comrie v. Sweet (1924) 75 C.
199, 225 P. 214.
An adjudication decree in general terms
giving the right to take water from seep-
age and underflow for the full capacity of
a pipe and without giving the date or pri-
ority number, is void as against prior ap-
propriators as the effect is to grant a first
right without restriction. Huerfano Val-
ley Ditch & Reservoir Co. v. Huerfano Val-
ley Investment Co. (1923) 73 C. 300, 215
P. 132.
In an action by appropriators to re-
strain undecreed diversion of seepage and
underflow of a stream by use of a pipe-
line, an injunction should be granted and
the fact that the amount of diversion was
small is immaterial. Model Land & Irri-
gation Co. v. Hoehne Ditch Co. (1921) 70
C. 484, 202 P. 712.
Where after the construction of a res.
ervoir, seepage water therefrom appeared
downstream at the base of the adjoining
hills, such seepage becomes a part of the
stream; it is regarded as belonging to de-
creed priorities and is not subject to ap-
propriation. The reservoir owner may not
by direct diversion thereof by a ditch con-
duct the same to lands as part of his de-
creed reservoir rights, or as of the same
priority. Rio Grande Reservoir & Ditch
Co. v. Wagon Wheel Gap Improvement
Co. (1920) 68 C. 437, 191 P. 129. (Dicta
in Ironstone Ditch Co. v. Ashenfelter
(1914) 57 C. 31, 140 P. 177 overruled.)


148-2-2


528







APPROPRIATION AND USE OF WATER


German Ditch & Reservoir Co. v. Platte
Irrigation Co. (1919) 67 C. 390, 178 P.
896.
Trowel Land & Irrigation Co. v. Bijou Ir-
rigation Dist. (1918) 65 C. 202, 176 P.
292.
Comstock v. Ramsay (1913) 55 C. 244, 133
P. 1107.
McKelvey v. North Sterling Irrigation
Dist. (1919) 66 C. 11, 179 P. 872.
Seepage waters from a natural stream,
which would again reach the stream if not
intercepted, are still a part of the original
stream and not subject to appropriation
except as stream water. Durkee Ditch Co.
v. Means (1917) 63 C. 6, 164 P. 503. (Com-
pare: Comstock v. Ramsay (1913) 55 C.
244, 133 P. 1107.)
The owner of lands upon which a spring
arises has the prior right to all such
waters as against the owner of lower
lands, who has merely used waste waters
flowing therefrom, after use by the spring
owner. White v. Rose Land & Cattle Co.
(1916) 61 C. 352, 157 P. 1164.
Seepage waters which would never
reach a stream are subject to independent
appropriation; and, when so appropriated
and turned into a natural stream for car-
riage, they do not become subject to the
claims of prior appropriators on the car-
rier stream. Ironstone Ditch Co. v. Ash-
enfelter (1914) 57 C. 31, 140 P. 177. (Com-
pare: Comrie v. Sweet (1924) 75 C.
199, 225 P. 214; Rio Grande Reservoir &
Ditch Co. v. Wagon Wheel Gap Improve-
ment Co. (1920) 68 C. 437, 191 P. 129;
and section 148-6-1.)
The appropriation of waste waters of
another's ditch confers no right upon the
appropriator to have the condition con-
tinued to satisfy his appropriation; con-
versely he does have a right that the ditch
owner cannot maliciously turn water on
other lands to prevent the flow of the
waste. Green Valley Ditch Co. v. Schneider
(1911) 50 C. 606, 115 P. 705.
Mabee v. Platte Valley Land Co. (1902)
17 C. A. 476, 68 P. 1058.
Fairplay Hydraulic Mining Co. v. Weston
(1901) 29 C. 125, 67 P. 160.
In determining whether one body of
water is tributary to another, actual phys-
ical tests should be undertaken by order
of the court, where necessary. Wilson v.
Collin (1909) 45 C. 412, 102 P. 21.
The owner of land upon which seepage
first arises may appropriate such waters


by means of a ditch, as against the prior
owner of a ditch across the same part of
the land who had abandoned such ditch
and water. Blake v. Boyle (1906) 38 C. 55,
88 P. 470.
New water developed from a mining
tunnel and allowed by the owners to reach
the stream may not be claimed by one who
had no priority thereto, was without inter-
est in the development thereof, and di-
verted many miles below on the stream;
such waters inure to the stream and its
appropriators. Farmers Union Ditch Co.
v. Rio Grande Canal Co. (1906) 37 C. 512,
86 P. 1042.
Waste, seepage, percolating, surface or
subterranean waters, which the original
owner allows to reach a natural stream,
become part of its volume, inure to the
benefit of prior appropriators, and are not
subject to independent appropriation. La-
Jara Creamery & Livestock Ass'n v. Han-
sen (1905) 35 C. 105, 83 P. 644.
Clark v. Ashley (1905) 34 C. 285, 82 P.
588.
Water Supply & Storage Co. v. Larimer
& Weld Reservoir Co. (1898) 25 C. 87,
53 P. 386.
McClellan v. Hurdle (1893) 3 C. A. 430,
33 P. 280.
Spring or percolating waters flowing
into a ditch are not appropriated by the
ditch owner, unless so adjudicated as
against the landowner of the source of the
water who claims ownership and makes
occasional use thereof. Smith Canal or
Ditch Co. v. Colorado Ice & Storage Co.
(1905) 34 C. 485, 82 P. 940.
Where a defendant makes claim to an
appropriation of seepage waters here-
under, the issue cannot be raised by de-
murrer, but only by answer. Ogilvy Ir-
rigating & Land Co. v. Insinger (1904) 19
C. A. 380, 75 P. 598.
One who claims an appropriation of
waste water from a ditch has no claim
against a ditch company for a specific
amount of such water, nor that the com-
pany shall maintain such waste. Mabee v.
Platte Land Co. (1902) 17 C. A. 476, 68
P. 1058.
The owner of land on which a spring
arises has no right to divert the water
flowing therefrom to the prejudice of a
prior appropriator of water from a stream
naturally fed thereby. Bruening v. Dorr
(1896) 23 C. 195, 47 P. 290.


148-2-3. Appropriation of natural springs.-The waters of natural
flowing springs may be appropriated for all beneficial uses, including domes-
tic use and uses for private and public bathing establishments, for bottling


148-2-3





WATER RIGHTS AND IRRIGATION


for use in commerce, irrigation, manufacturing and mining, the same as
water of natural streams. Claims therefore may be Niled with the state
engineer and such appropriations may be adjudicated in any proceedings
brought or pending for determination of priorities of the use of water for
irrigation or other beneficial purposes in the water district wherein said
springs may be situated, irrespective of whether or not the water from any
such spring or springs are tributary to any natural streams. If upon any
such adjudication it shall appear and be found and determined that the
water of any such springs are not naturally tributary to any natural
stream, the court shall fix and decree the rights of appropriators from
such springs among themselves. As to any such appropriators among
themselves, whose rights shall not have been defined or determined by
decree of court or contract, continuous, open, notorious and adverse user
of water for more than twenty years shall entitle the appropriator to the
continued use thereof to the extent of his beneficial use throughout said
period irrespective of whether or not such appropriators shall have made
record filings for such claims.
Source: L. 17, p. 541, 1; C. L. 1638; CSA, C. 90, 21; CRS 53, 147-
2-3.
General: Although this section creates no right
Absent an express disclaimer, adverse of appropriation for surface drainage
use of a spring-fed lake, sufficient to waters from irrigation of adjoining lands,
create an exclusive presumption hereunder, the fact that such waters are commingled
cannot exist, where the parties have had with seepage waters does not preclude an
joint possession of the waters involved un- appropriation of the latter. Lomas v.
der an adjudication decree incorporating a Webster (1942) 109 C. 107, 122 P.2d 248.
contract between the parties, fixing their Cited:
joint use thereof. Surface Creek Ditch & Smith Canal or Ditch Co. v. Colorado
Reservoir Co. v. Grand Mesa Resort Co. Ice & Storage Co. (1905) 34 C. 485, 82 P.
(1946) 114 C. 543, 168 P.2d 906. 940 (annot. 148-2-2).

148-2-4. Not to impair vested rights.-Nothing contained in sections
148-2-3 to 148-2-5 shall be construed to amend or repeal section 148-2-2;
or impair, diminish or destroy any valid appropriation of water for any
beneficial use which shall have been made or decreed in accordance with
law; or modify, amend or affect any decree of court or the statutes limiting
the time wherein appropriators must have appeared for determination of
priorities of right for diversions from natural streams, or the decisions
of the courts construing the statutes.
Source: L. 17, p. 542, 2; C. L. 1639; CSA, C. 90, 22; CRS 53, 147-
2-4.

148-2-5. Interference with flow-damages.-Any person, association
or corporation who without lawful right so to do, shall cause any diminution
of or obstruction or interference with the flow of waters from any such
natural springs to the injury of any appropriator of any such waters, shall
be liable in damages to the injured party to the amount of such injury.
Source: L. 17, p. 542, 3; C. L. 1640; CSA, C. 90, 23; CRS 53, 147-
2-5.

148-2-6. Water for domestic purposes shall not be used for irrigation.-
Water claimed and appropriated for domestic purposes shall not be employed
or used for irrigation or for application to land or plants in any manner to
any extent whatever. The provisions of this section shall not prohibit any
city or town or corporation organized solely for the purpose of supplying


530


148-2-4








RIGHTS-OF-WAY AND DITCHES


water to the inhabitants of such city or town from supplying water thereto
for sprinkling streets and extinguishing fires or for household purposes.
Source: L. 91, p. 402, 1; R. S. 08, 3178; C. L. 1641; CSA, C. 90,
24; CRS 53, 147-2-6.


General:
The property right to water of Colorado
streams is in the public; the right of the
appropriator is the right to use for a par-
ticular purpose and when such use is com-
pleted the right terminates. When a
municipality uses its appropriated water


for sewerage purposes and then purifies
the same by a purification plant the re-
sulting water is the property of the public,
is not the subject of a sale and is not new
water belonging to the city. Pulaski Ir-
rigating Ditch Co. v. Trinidad (1922) 70
C. 565, 203 P. 681.


148-2-7. Penalty for misapplication.-Any person claiming the right to
divert water for domestic purposes from any natural stream who shall
apply or knowingly permit the water so diverted to be applied for other
than domestic purposes to the injury of any other person entitled to use
such water for irrigation shall be deemed guilty of a misdemeanor and
upon conviction shall pay a fine of not less than fifty dollars and not exceed-
ing two hundred dollars in the discretion of the court wherein conviction
is had. Each day of such improper application of water obtained in the
manner aforesaid shall be deemed a separate offense. Justices of the peace
in their several precincts shall have jurisdiction of the aforesaid offense
subject to the right of appeal as in cases of assault and battery.
Source: L. 91, p. 403, 2; R. S. 08, 3179; C. L. 1642; CSA, C. 90,
25; CRS 53, 147-2-7.
148-2-8. Right to place wheels on streams.-All persons on the margin,
brink, neighborhood or precinct of any stream of water, shall have the
right and power to place upon the bank of said stream a wheel, or other
machine, for the purpose of raising water to the level required for the
purpose of irrigation and the right-of-way shall not be refused by the
owner of any tract of land upon which it is required, subject of course to
the like regulations, as required for ditches.
Source: R. S. p. 364, 6; G. L. 1377; G. S. 1727; R. S. 08, 3180;
C. L. 1643; CSA, C. 90, 26; CRS 53, 147-2-8.
General: increases sedimentation of the common
This section enl::les one of several own- ditch, other owners may recover in an ac-
ers of a ditch in common to change his tion for contribution. Compton v. Knuth
method of diversion from headgate to (1948) 117 C. 523, 190 P.2d 117.
pumping into the ditch for carriage after Hallet v. Carpenter (1906) 37 C. 30, 86 P.
diversion; if such new method of diversion 317.


ARTICLE 3

Rights-of-Way and Ditches


Right-of-way through other
lands.
Extent of right-of-way.
Condemnation of right-of-way.
No land burdened with more
than one ditch.
Shortest route must be taken.
Owner of ditch must permit en-
largement.
Incorporation of lateral ditch
owners.


148-3-8.

148-3-9.
148-3-10.
148-3-11.

148-3-12.
148-3-13.

148-3-14.


Consideration of incorporation
benefits.
Payment of damages.
Sections liberally construed.
Head of ditch may be extended
upstream.
Application of section 148-3-11.
Water to be prorated among
consumers.
Irrigation of meadows.


148-3-1.

148-3-2.
148-3-3.
148-3-4.

148-3-5.
148-3-6.

148-3-7.


148-2-8









Cited: Cited and applied:
Twin Lakes Reservoir & Canal Co. v. Freel v. OzaTk-Mahoning Co. (1962) 208
Sill (1939) 104 C. 215, 89 P.2d 1012. F. S. 93 (annot. 92-24-3 and 148-5-4).
148-5-14. Penalty-disposition of fines.-Any reservoir company fail-
ing or refusing, after ten days' notice in writing having been given, to obey
the directions of the state engineer as to the construction or filling of any
reservoir, shall be subject to a fine of not less than fifty dollars, for each
offense, and each day's continuance after time of notice has expired shall
be considered a separate offense. Such fines shall be recovered by civil
action in the name of the people, by the district attorney, upon the com-
plaint of the state engineer, and in the county where the injury complained
of occurred. The proceeds of all fines, after payment of costs and charges
of the proceedings, shall be paid into the county treasury for the use of the
general fund of the county.
Source: L. 99, p. 317, 10; R. S. 08, 3214; C. L. 1694; CSA, C. 90,
92; CRS 53, 147-5-14.

148-5-15. Survey of reservoir site on arid land.-It shall be the duty
of the county surveyor of each county within this state upon the request
of the owner of ten or more acres of arid land lying in such county, to
locate and survey an available site for a reservoir upon such land, such
reservoir to be used for the storage of water to irrigate the land contiguous
thereto and such reservoir to be of a capacity to hold sufficient water to
properly irrigate not less than ten acres of such land.
Source: L. 03, p. 262, 1; R. S. 08, 3215; C. L. 1695; CSA, C. 90,
93; CRS 53, 147-5-15.
148-5-16. Construction of reservoir-supervision.-Within thirty days
after such location and survey by the county surveyor, 'the owner of such
land shall begin the construction of such reservoir and shall work con-
tinuously thereon until the completion thereof. All of such work of con-
struction and the construction of such dam as may be necessary and the
construction of the outlet to such reservoir shall be done under the direc-
tion and supervision of such county surveyor.
Source: L. 03, p. 262, 2; R. S. 08, 3216; C. L. 1696; CSA, C. 90,
94; CRS 53, 147-5-16.
148-5-17. Completion-plat filed-contents.-Upon the completion of
the reservoir it shall be the duty of the county surveyor to file with the
board of county commissioners of such county, a map or plat of the land
upon which such reservoir is located; describing such land by legal sub-
divisions and showing thereon the name of the owner; the number of
acres of arid land contiguous to such reservoir claimed by such owner;
the size or water capacity in cubic feet of such reservoir; the number of
acres of land capable of being irrigated by such reservoir; the source and
means of supplying such reservoir with water, and indicating the point
of location upon the land of such reservoir.
Source: L. 03, p. 263, 3; R. S. 08, 3217; C. L. 1697; CSA, C. 90,
95; CRS 53, 147-5-17.
148-5-18. Approval of plat-duty of owner.-It shall be the duty of
the board of county commissioners, within sixty days after the filing of
such map or plat, to approve the same by resolution spread upon the


RESERVOIRS


148-5-18








WATER RIGHTS AND IRRIGATION


of the water commissioner for the district in which said reservoir is situ-
ated, at such times as the scarcity of water in the stream known as the
South Arkansas demands that the waters in said stream should be replen-
ished for the purpose of irrigating the lands under ditches now, or hereafter
to be constructed; provided, that said waters shall be distributed by the
said water commissioner pro rata without reference to the dates of priori-
ties of water rights and without expense to the consumers thereof; pro-
vided, further, that the county of Chaffee assumes and shall be held
responsible for any damages resulting from breakage of the dam or water
discharges therefrom.
Source: L. 97, p. 119, 1; R. S. 08, 3560; C. L. 1957; CSA, C. 90,
374; CRS 53, 147-17-15.
148-17-16. County control of reservoirs.-The board of county com-
missioners of any county wherein is situated any state reservoir, shall
have charge and control of such reservoir and, without expense to the
state of Colorado, shall maintain and keep said reservoir in good condition
and provide for the storage of water as contemplated in the law providing
for the construction of said reservoir, and also for the distribution of
said water under the direction of the water commissioner for the district
in which said reservoir is situated, at such times as the scarcity of water
in the stream which such reservoir is intended to reinforce demands that
the water.in said stream should be replenished for the purpose of irrigating
the lands under ditches now or hereafter to be constructed; provided,
that said waters shall be distributed by said water commissioner pro rata
without reference to priority of water rights and without expense to con-
sumers thereof; and, provided, also, that the counties in which said reser-
voirs are situated assume and shall be held responsible for any damages
resulting from breakage of the dams or water discharges therefrom; and,
provided, further, that the provisions of this section shall not apply to
any state reservoir constructed primarily for the purpose of irrigating
state lands, but any such reservoir shall remain in the control of the state
board of land commissioners.
Source: L. 99, p. 350, 1; R. S. 08, 3562; C. L. 1959; CSA, C. 90,
376; CRS 53, 147-17-16.


ARTICLE 18

Underground Water
148-18-1. Definitions. 148-18-8. Exemption.
148-18-2. Statement of use-filing-fee. 148-18-9. Priority date.
148-18-3. Commission organization 148-18-10. Waste-well logs license -
expenses-tentatively criti- bond-violations.
cal districts-duties. 148-18-11. Jurisdiction not impaired-
148-18-4. District advisory board-elec- time limit.
tion-duties-by-laws. 148-18-12. Water conservation board-
148-18-5. Permits-new wells or in- duties.
creased use. 148-18-13. Review.
148-18-6. Modification or substitution of 148-18-14. Disposition of funds.
existing well. 148-18-15. Short title.
148-18-7. Permit not ground water
right-evidence.

148-18-1. Definitions.-(1) The term "user" as used herein shall
mean any individual, partnership, association or corporation authorized-to


148-17-16







UNDERGROUND WATER


do business in the state of Colorado, or any political subdivision or public
agency thereof, or any agency of the United States of America, making
a beneficial use, or taking steps or doing work preliminary to making a
beneficial use of underground waters of Colorado.
(2) The terms "underground water" and "ground water" are used in-
terchangeably in this article and refer to any water not visible on the
surface of the ground under natural conditions.
(3) The term "aquifer" means a geological formation that contains
or transmits ground water.
(4) "State engineer" as used in this article refers to the state engineer
of Colorado or any person deputized by him in writing to perform a duty
or exercise a right granted or enjoined in this article, but no deputization
shall relieve the state engineer of full responsibility for the act or acts of
any person deputized by him.
(5) "Ground water commission" as used in this article refers to the
ground water commission created and provided for in section 148-18-3
to facilitate the functioning of this article.
(6) "Colorado water conservation board" as used in this article refers
to the board referred to in section 149-1-1, Colorado Revised Statutes
1963.
(7) "Well" as used in this article means any structure or device used
for the purpose or with the effect of obtaining water for beneficial use
from an aquifer.
(8) "Artesian well" as may be used with respect to this article means
a well obtaining water from an aquifer under hydrostatic pressure in an
area described by the ground water commission as a proven artesian basin.
(9) "Well driller" means any individual, corporation, partnership,
association, political subdivision or public agency which shall dig, drill,
case, recase, deepen or excavate a well or wells either by contract or for
hire, or for any consideration whatsoever.
(10) "Private driller" as used in this article means any individual,
corporation, partnership, association, political subdivision or public agency
which shall operate as lessee or owner its own well drilling rig and equip-
ment and which shall dig, drill, redrill, case, recase, deepen or excavate
a well or wells upon the property of such entity.
Source: L. 57, p. 863, 1; CRS 53, 147-19-1.


General:
In Colorado it is the presumption that
all ground water situated in the basin or
watershed of a stream is tributary to the
stream and subject to the appropriation
of the water of the stream; and the bur-
den of proof to the contrary is on the one
asserting that such ground water is not
tributary. Safranek v. Town of Limon
(1951) 123 C. 330, 228 P.2d 975. (Com-
pare: Medano Ditch Co. v. Adams (1902)
29 C. 317, 68 P. 431; Bruening v. Dorr
(1896) 23 C. 195, 47 P. 280.)
DeHaas v. Benesch (1947) 116 C. 344, 181
P.2d 453.
Dalpez v. Nix (1935) 96 C. 540, 45 P.2d
176.
Leadville Mine Co. v. Anderson (1932) 91
C. 536, 17 P.2d 303.


Nevius v. Smith (1929) 86 C. 178, 279 P.
44.
Comrie v. Sweet (1924) 75 C. 199, 225
P.2d 214.
In re German Ditch Co. (1914) 56 C. 252,
139 P. 2.
Comstock v. Ramsay (1913) 55 C. 244, 133
P. 1107.
Underground currents of water which
flow in well defined channels, the course
of which can be traced, are subject to the
same rules of law as streams flowing upon
the surface; the existence of such streams
are defined and known within the meaning
of the law, though invisible, where the
course and flow are determined by reason-
able inference. Medano Ditch Co. v.
Adams (1902) 29 C. 317, 68 P. 431.


148-18-2. Statement of use-filing-fee.-(1) Existing ground wa-
ter uses shall be as fully recognized as if this article had been in force at the


643


148-18-2








WATER RIGHTS AND IRRIGATION


time of their initiation. Within three years after the effective date of this
article, however, all users of ground water shall file statement of their
use with the state engineer, setting forth such information as may rea-
sonably be required by the state engineer for the proper administration of
this article, including but not limited to the following: The name and post
office address of the person making the use, the location of the well or
tunnel or other means of diversion referenced to a legal land subdivision;
the facilities used to make beneficial use of the water; the nature and
extent of use; the quantity of ground water used in gallons per minute and
cubic feet per second and the quantity in acre feet in case of storage; the
date when work on diversion facilities was commenced, and the date
when water was first applied to a beneficial use; and other fact or facts
reasonably necessary to define clearly the purpose and extent of the use.
(2) A filing fee of five dollars shall accompany the application, pro-
vided, that where the user has filed the use in the office of the state
engineer at a time prior to the effective date of this article there shall be
no fee required.
(3) The state engineer shall file and preserve such statements and
make a record thereof in his office so indexed as to be useful to users
in determining the extent of use made from various water sources, and
shall issue a permit for each use. Failure to file a statement of use
within three years as provided in subsection (1) of this section shall
be prima facie evidence of an intent to abandon such use; and in admin-
istering the underground waters of this state and in serving notice of
hearings, the state engineer may disregard any use not so filed.
(4) Any user of ground water who failed to file a statement of use
within the time required for such filing under this section as originally
enacted, may file, prior to December 31, 1961, with a filing fee of ten dol-
lars, a statement of use as prescribed in this section, for any ground
water use which was existing on the effective date of this article as
originally enacted, and such filing shall have the same effect as if it were
a statement filed pursuant to this section within the time for filing
specified in this section. Any application which may have been filed, or be
filed prior to December 31, 1961, for a "permit to use ground water" under
section 148-18-5, if based in whole or in part on a ground water use which
was existing on the effective date of this article as originally enacted,
shall, to the extent of such use existing on said effective date, have the
same effect as if it were a statement of use filed pursuant to this section
within the time for filing specified in this section.
Source: L. 57, p. 864, 2; CRS 53, 147-19-2; L. 61, p. 841, 1.


General:
The constitutional doctrine (art. XVI,
5) of prior appropriation of water is not
applicable to underground waters which
are not tributary to any natural stream;
and, a decree of a district court in an ad-
judication proceeding which purported to
award priorities of right to underground
waters which were not tributary to any
stream, is void. The purpose of the under-
ground water statutes (148-18-1 et seq.) is
prospectively to protect underground wa-
ters and prevent waste in their production,
distribution and use. Whitten v. Coit
(1963) 153 C. 385 P.2d 131.
In an injunction proceeding arising from
controversy as to seniority of appropria-


tions from an underground flowing aqui-
fer, eventually a part of a natural stream,
the court held:
1. Priority of appropriations does not
give a right to an ineffecient means of
diversion, nor does it command the whole
or substantial flow of stream merely to
satisfy such inefficient diversion.
2. Water rights in such circumstances
are measured by direct immediate appli-
cation to beneficial use based on the rate
of flow in the aquifer and not in acre-
feet.
3. In Colorado there is no direct use
"season," nor is there a season set apart
for storage.
4. There can be no apportionment from


148-18-2







UNDERGROUND WATER


the available supply of water in time of follow the same legal principles as water
short supply; the rule of seniority is ap- in appropriation from surface streams;
plicable and junior appropriators may be and to arrive at such results, the rate of
shut off if necessary to supply the priori- flow, elevation of water, and means of
ties of the senior appropriators, diversion must be considered, City of Col-
5. The administration of underground orado Springs v. Bender (1961) 148 C. 458,
priorities involving time and use must 366 P.2d 552.
148-18-3. Commission-organization expenses tentatively critical
districts-duties.-(1) There is hereby created a ground water commis-
sion to consist of eight members, appointed by the governor, and con-
firmed by the senate. The first appointments shall be made within thirty
days after the effective date of this article. Appointments shall be two
each from irrigation divisions one, two and three, and one from either
division four or seven and one from either division five or six. Of the
two members appointed from division one and two, one member from each
of such divisions shall be appointed representing the area east of the 104
meridian and one from the area west of the 1040 meridian. Of the two
members appointed from division three, one member shall be appointed
representing the area north and east of the Rio Grande river and one
representing the area south and west of the Rio Grande river.
(2) At the first meeting of the commission the appointed members
shall draw lots to determine which two shall hold office for a period of
four years, which two shall hold office for a period of three years, which
two shall hold office for a period of two years and which two shall hold
office for a period of one year; provided, that the terms of office of each
of the two appointees from divisions one, two and three shall not be of
the same length.
(3) All subsequent appointments shall be for four year terms, except
those made to fill vacancies due to removal from the irrigation division
or by resignation. Appointees to the commission shall be landowners
in their respective division, shall be reasonably familiar with water usage
including ground water irrigation in their respective divisions, at least
four shall be agriculturists and as nearly as may be determined all shall
be unbiased and without prejudice between surface and ground water use.
(4) The governor, the state engineer and the director of the state
water conservation board shall be ex officio members of the commission.
Ex officio members shall have no vote. Five voting members shall consti-
tute a quorum at any regularly called meeting of the commission, and a
majority vote of those present shall rule. The commission shall establish
and maintain, as nearly as may be practicable, a schedule of four general
meetings each year.
(5) Members of the commission shall be paid actual necessary ex-
penses incurred by them in the performance of their duties as members
thereof and a per diem equal in amount to per diem payments made to
members of other state commissions of a similar general character.
(6) Within fifteen days after the appointment of the original members
of this commission, they shall meet in Denver and select a chairman, vice
chairman and a secretary from among themselves. As soon as they have
organized they shall consult with the state engineer, director of the water
conservation board and with any other persons or representatives of
agencies which are capable of furnishing factual information concerning
ground water and the geologic conditions most pertinent to the develop-
ment and usage of ground water.
(7) As soon as the commission has completed a preliminary survey
through conference, consultation and other means readily at hand, it may
designate, as "tentatively critical ground water districts," any areas where,
from the information gathered, the withdrawal of ground water appears


148-18-3






WATER RIGHTS AND IRRIGATION


to have approached, reached or exceeded the normal annual rate of
replenishment. The commission shall recognize the possible occurrence
of two or more superimposed aquifers within a district which are
geologically or hydrologically unrelated.
(8) When such an occurrence is recognized to exist within a district,
the commission shall designate which are critical and boundaries shall be
set accordingly. Boundaries of designated districts shall consist of land
survey lines, highways, county roads, railroads and readily recognizable
natural boundaries which can be definitely and clearly described. All
surface boundaries are to be as consistent as may be reasonably possible
with known or evident hydrological or geological boundaries.
(9) The commission shall immediately close all areas designated as
tentatively critical districts to further development of ground water re-
sources. Publication of an official notice of the action taken shall be
made in a newspaper of general circulation within each designated district.
The state engineer shall refuse to issue permits for new wells in any
district designated as critical except as exempted in section 148-18-8, or
except to replace, deepen or reconstruct wells which have been in operation
for more than one year prior to the effective date of this article, to the
extent that such is necessary to restore the productive capacity of such
a well.
(10) As soon as reasonable sufficient data and information have been
obtained and considered, but within one year from the effective date of its
designation as a tentatively critical ground water district, the commission
shall review each area so designated, and make such changes in the
boundaries thereof as may be necessary to conform with hydrologic and
geologic data. The commission shall publish notice thereof in some news-
paper of general circulation within the district or districts. Any publica-
tion provided in this article shall be for three successive weeks.
(11) The commission shall at any time after the designation of a
tentatively critical ground water district upon its own initiative, or at
the unanimous request of the local advisory board, or upon petition of two-
thirds of the resident landowners, using ground water not exempted by
section 148-18-8 within the district, remove any restrictions, modify any
restrictions, or remove the designation of the'area as a tentatively critical
ground water district.
(12) The commission may, at any time, upon its own initiative, or at
the request of the state engineer, or upon petition of what the commission
considers to be a substantial number of the ground water users within a
district or within any area of the state of Colorado review available
hydrological, geological and other pertinent data and information and
declare such area to be a tentatively critical ground water district and set
the boundaries thereof accordingly as prescribed in subsection (8) of
this section. Any area added as a tentatively critical ground water district
shall thereupon become subject to the regulations prescribed in this
article.
(13) In addition to any other duties and as a part of its official func-
tion, the commission shall have the authority to direct the state engineer
who shall execute its orders, in all matters pertaining to ground water
except those specifically delegated to him by statute or court decree as his
responsibility.
Source: L. 57, p. 865, 3; CRS 53, 147-19-3.
148-18-4. District advisory board-election-duties-by-laws.-(1)
The commission shall conduct an election to select a district advisory board
of five members to cooperate with the commission and the state engineer


148-18-4







UNDERGROUND WATER


in promoting and maintaining legally equitable and efficient diversion and
use of ground water in such restricted district.
(2) The commission shall select the time and place for holding the
election; the time to be not less than thirty days nor more than sixty days
after the date of the determination of the critical district; the place to be
best suited to serve the reasonable convenience of the persons in the
district. Within thirty days after the determination of the critical district,
the commission shall cause a notice to be published in a legal newspaper
of general circulation in that area for not less than three weeks prior to
the election, containing the date, hour and place where election shall be
held for the election of five members of the district advisory board.
(3) A "qualified voter" of a district, within the meaning of this article,
is a duly authorized agent of a political subdivision or corporation using
water within the district or a person, resident or nonresident of the
district who is qualified to vote at general elections in this state, who
owns real property within a tentatively critical ground water district
and has paid general taxes thereon in the twelve months immediately
preceding a designated time or event, and who owns a well, not exempted
in section 148-18-8 of this article. A person who is obligated to pay
general taxes under a contract to purchase real property irrigated by
underground waters within the district shall be considered as an owner
within the meaning of this .definition. The payment of a specific owner-
ship tax on a motor vehicle or trailer shall not qualify an elector for voting.
(4) At such election, the five individuals receiving the highest number
of votes each shall be elected to the district advisory board. A candidate
for election to the advisory board shall be a qualified voter and a resident
of the tentatively critical ground water district, or the resident repre-
sentative of a municipality or corporation.
(5) The commission shall prepare for submission to the qualified
voters at the election tentative by-laws for the conduct of the business of
the district, setting forth the terms of office of the members of the
district advisory board and any other rules and regulations deemed neces-
sary to proper functioning of the district advisory board.
(6) District advisory boards shall have the duty and responsibility to
consult with the commission on all ground water matters affecting their
respective districts, to determine whether proposed restrictions or regula-
tions are suitable for such area, to determine in conjunction with the
commission and the state engineer whether a critical or tentatively critical
area should be enlarged or contracted, to cooperate with the commission
and the state engineer in the assembling of data on the ground water
aquifers in the area and the enforcement of regulations or restrictions
which may be imposed thereon, and to assist the commission and the state
engineer to the end of conserving the ground water supplies of the area
for the maximum beneficial use thereof.
(7) It is expressly provided, however, that the consent of a majority
of the members of a district advisory board of an area shall be necessary
before an initial designation of tentatively critical as to such area may be
kept in effect for more than twelve months. After such initial designation,
subsequent designations and accompanying restrictions may be imposed by
the commission with the consent of the district advisory board for the
area, to extend for twelve-month periods prior to further review.
Source: L. 57, p. 867, 4; CRS, 53, 147-19-4.
148-18-5. Permits--new wells or increased use.-(1) From and after
the date this article becomes effective, no new wells shall be drilled, nor
the supply of water from existing wells increased or extended, unless the


148-18-5






148-18-6 WATER RIGHTS AND IRRIGATION 648

user shall make an application in writing to the state engineer, for
a "permit to use ground water," setting forth the name and post office
address of the applicant, the proposed use for which the use is intended,
the date of the initiation of the use, the flow of water sought to be used
expressed in cubic feet per second and in gallons per minute, the volume
of water in acre feet to be used in cases in which storage is part of the
means of effecting beneficial use, the aquifer or aquifers from which the
water is to be diverted, a description of the location of the diverting works,
referenced to a legal land subdivision, and other fact or facts reasonably
necessary to clearly define the location, purpose and extent of the proposed
use. If the purpose is for irrigation, the application shall show the legal
land subdivision or other appropriate designation of the land proposed to
be irrigated and the total acreage thereof and other water rights. Each
application shall also set forth such other information as the state engineer
may reasonably require.
(2) Upon receipt of an application for a new, increased or additional
supply of ground water from an area outside the boundaries of a tentatively
critical ground water district, accompanied by a filing fee of twenty-five
dollars, the state engineer shall issue a "permit to use ground water."
The permit shall set forth such conditions for drilling, casing and equipping
wells and other diversion facilities as are reasonably necessary to pre-
vent waste or pollution of water and injury to existing rights. The state
engineer shall endorse upon the application the date of its receipt, file and
preserve such application, and make a record of such receipt and the
issuance of the permit in his office so indexed as to be useful to the user in
determining the extent of use made from various ground water sources.
Source: L. 57, p. 869, 5; CRS 53, 147-19-5.
148-18-6. Modification or substitution of existing well.-The state
engineer shall provide regulations under which an existing well may be
modified by change of the well itself, the pumping equipment therefore,
by the drilling of a substitute well, or otherwise in order to make it
possible for the owner of a well to obtain the water to which such owner
is entitled as initiated by the original well.
Source: L. 57, p. 869, 6; CRS 53, 147-19-6.
148-18-7. Permit not ground water right-evidence.-A permit shall
not have the effect of granting or conferring a ground water right upon
the user nor shall anything in this article be so construed. Nevertheless, a
permit shall be a necessary prerequisite to the initiation of a new or
additional supply and shall be prima facie evidence of the date and extent
thereof.
Source: L. 57, p. 870, 7; CRS 53, 147-19-7.
148-18-8. Exemption.-Wells used solely for stock watering purposes;
wells used for domestic purposes having discharge pipes of two inches or
less, and all artesian wells with discharge pipes not exceeding three inches
in diameter shall be exempt from the provisions of this article except sec-
tion 148-18-10 hereof.
Source: L. 57, p. 870, 8; CRS 53, 147-19-8.
148-18-9. Priority date.-The priority date of a ground water appro-
priation shall not be postponed to a time later than its true date of initia-
tion by reason of failure to adjudicate such right in a surface water
adjudication.
Source: L. 57, p. 870, 9; CRS 53, 147-19-9.







UNDERGROUND WATER


148-18-10. Waste- well logs -license-bond-violations.-(1) The
state engineer in cooperation with the commission shall have power to
regulate the drilling and construction of all wells in the state of Colorado
to the extent necessary to prevent the waste of water and the injury to
or destruction of other water resources, and shall require well drillers and
private drillers to file a log of each well drilled. He shall adopt such rules
and regulations as are necessary to accomplish the purposes of this section.
Where a user proposes to tap an underground water source under circum-
stances such that rights of other users are likely to be injured if the
well or other means of tapping is not adequately cased, capped, or other-
wise controlled, provision for such control shall be made a condition of
the granting of a right to drill for such water.
(2) If the state engineer finds any well to have been drilled or main-
tained in a manner or condition contrary to any of the provisions of this
article or the regulations issued hereunder, he shall immediately notify
the user in writing of such violation and give him such time as may
reasonably be necessary, not to exceed sixty days, to correct deficiencies.
If the user fails or refuses to make the changes within the allowed time
the state engineer is authorized to enter upon his land and do whatever
is necessary that the user comply with the provisions of this article or
regulations issued hereunder.
(3) No well driller, as defined in section 148-18-1(9), shall drill a new
well or otherwise do work on any well requiring authority from the state
engineer until a permit with respect thereto shall have been secured for
such work. Any structure which would fall into the classification of a
"well" as defined in section 148-18-1(7) except for the fact that the
same is made for the purpose of a test only shall be completely filled
within thirty days after completion of the test, and if not so filled shall be
deemed a "well" as defined in said subsection (7).
(4) No well driller, as defined in section 148-18-1(9), shall perform
any function with respect to a well without first obtaining a well driller's
license from the state engineer. Each license issued shall terminate at the
end of the calendar year in which the same shall be issued and shall only
be issued upon the payment of a fee therefore of twenty-five dollars.
Such a license shall be issued by the state engineer upon the submission
of a written application showing the qualifications of the well driller,
together with a bond in the amount of five thousand dollars with a
corporate surety authorized to do business in the state of Colorado, con-
ditioned to require such driller to comply with the laws of the state of
Colorado, and the rules of the state engineer promulgated in compliance
with this article.
(5) In the event of a breach of the conditions of the bond and upon
failure of the principal to comply with the provisions thereof, it shall
be the duty of the person upon whose land any well is drilled, redrilled,
cased, recased, or deepened or otherwise constructed or changed to
make such rectification of the work performed as will bring about
a compliance with the provisions of law and the rules and regulations of
the state engineer. In case of failure to do so, the state engineer may
perform the necessary work and the landowner, "the well driller" and the
surety on the bond shall be jointly and severally liable for the cost of
the work done and services performed to bring about compliance with
the law, and the rules and regulations of the state engineer.
(6) The state engineer may revoke the license of any well driller who
shall be found by the state engineer, after hearing, to have intentionally
violated the terms of this law. No license shall thereafter be issued to
such well driller until he shall have given reasonable assurance of an ability


148-18-10


649







148-18-11 WATER RIGHTS AND IRRIGATION 650

and intention to perform his duties as a well driller in compliance with
the law.
Source: L. 57, p. 870, 10; CRS 53, 147-19-10.

148-18-11. Jurisdiction not impaired-time limit.--Jurisdiction of the
commission or state engineer shall not be impaired by reason of failure
of either to act within any period of time specified in this article provided
that enforcement by the state engineer of the provisions of section
148-18-10 must be commenced within a period of six months from the
date of completion of any well drilled after the effective date of this article.
Source: L. 57, p. 871, 11; CRS 53, 147-19-11.

148-18-12. Water conservation board-duties.-The Colorado water
conservation board shall have power, and it shall be its duty to investigate
and determine the nature and extent of the underground water resources
of the state of Colorado. It shall also be the duty of said board to study
and determine the effect, if any, of the withdrawal of ground water upon
aquifer supply and upon the surface flow of streams, and the information
obtained thereby shall be made available to the commission and the state
engineer. Nothing herein shall be construed as impairing the authority
of the commission or the state engineer to make such investigations as
they may find necessary or desirable to enable them to perform their
duties under this article.
Source: L. 57, p. 872, 12; CRS 53, 147-19-12.

148-18-13. Review.-Any person aggrieved by an order or act of the
ground water commission, the local district advisory board or the state
engineer, may, within sixty days after notice thereof initiate a proceed-
ing in the district court having jurisdiction of the area in which the
user is located for a review of the action or finding of which he complains.
The hearing in the district court shall be a trial de novo. The pleadings,
practice and procedure in such suits shall conform with the Colorado
rules of civil procedure.
Source: L. 57, p. 872, 13; CRS 53, 147-19-13.

148-18-14. Disposition of funds.-All monies collected as filing fees
in compliance with sections 148-18-2 and 148-18-5 and all monies collected
as license fees in compliance with section 148-18-10 shall be paid into
the state treasury and credited to the general fund. The general assembly
shall appropriate from the general fund to the state engineer and the
commission the expenses of administering this article. Expenditures shall
be made by voucher signed by the state engineer and countersigned by
the secretary of the commission.
Source: L. 57, p. 872, 14; CRS 53, 147-19-14; L. 63, p. 980, 1.
Cross reference: For collection and disposition of fees, see 3-3-5, 3-7-1(1) (h) and
3-7-3.

148-18-15. Short title.-This article shall be known and may be cited
as the "Colorado Ground Water Law."
Source: L. 57, p. 872, 16; CRS 53, 147-19-15.




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