RULES GOVERNING NEW WITHDRAWALS OF GROUND WATER IN

WATER DIVISION 3 AFFECTING THE RATE OR DIRECTION OF

ORDER OF THE STATE ENGINEER

BY THIS ORDER the State Engineer adopts the following rules governing new

withdrawals of ground water in Water Division 3 that will affect the rate or direction of

movement of water in the Confined Aquifer System.

Rule 1. Title

The title of these rules is “Rules Governing New Withdrawals of Ground Water in

Water Division 3 Affecting the Rate or Direction of Movement of Water in the

Confined Aquifer System.” The short title for these rules is “Confined Aquifer

New Use Rules for Division 3,” and they may be referred to herein collectively as

the “rules” or individually as a “rule.”

Rule 2. Authority

These rules are promulgated pursuant to the authority granted the State

Engineer in section 37-90-137(12)(b)(I), C.R.S. (2003), and section 37-92-501,

C.R.S. (2003), as amended by Senate Bill 04-222.

Rule 3. Scope and Purpose

A. These rules apply to any new withdrawal of ground water from the

Confined Aquifer System in Water Division 3 that will affect the rate or
 direction of movement of water in the Confined Aquifer System, including

a well permit application for a new, increased, or additional supply of

ground water from the Confined Aquifer System, but excluding

applications to construct a replacement well located within 200 feet of the

replaced well or to construct wells specified in paragraphs (a) to (d) and (f)

of section 37-92-602(1), C.R.S. (2003).

B. These rules establish criteria to determine if a new withdrawal of ground

water from the Confined Aquifer System in Water Division 3 will affect the

rate or direction of movement of water in the Confined Aquifer System.

C. These rules establish requirements for new withdrawals of ground water

from the Confined Aquifer System in Water Division 3 that will affect the

rate or direction of movement of water in the Confined Aquifer System.

D. These rules also establish requirements to ensure that a new withdrawal

of ground water from the Confined Aquifer System in Water Division 3 will

not cause fluctuations in the artesian pressures in the Confined Aquifer to

fall outside the ranges that occurred during the period of 1978 through

2000 and to maintain average artesian pressure levels similar to those

that occurred in 1978 through 2000.

E. These rules are based upon specific study of the Confined Aquifer System

as directed by section 37-90-137(12)(b)(I), C.R.S. (2003), and are

intended to permit the development of the water resources of Water

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 Division 3 in a manner that will protect Colorado’s ability to meet its

interstate compact obligations and to prevent injury to senior appropriators

in the order of their priorities, with due regard for daily, seasonal, and

longer demands on the water supply.

F. These rules have as their objective the optimum use of water consistent

with preservation of the priority system of water rights and protection of

Colorado’s ability to meet its interstate compact obligations. These rules

also have as their objective allowing fluctuations in the artesian pressures

in the Confined Aquifer within the ranges that occurred during the period

of 1978 through 2000, and allowing artesian pressures to increase in

periods of greater water supply and to decline in periods of lower water

supply in much the same manner and within the same ranges of

fluctuation as occurred during the period of 1978 through 2000, while

maintaining average artesian pressure levels similar to those that occurred

in 1978 through 2000.

Rule 4. Definitions

A. As used in these rules:

1. “Confined Aquifer” means the formations, groups of formations, or

parts of formations underlying portions of Water Division 3 consisting in

part of unconsolidated clays, silts, sands, gravels, and interbedded

volcanic rock and containing saturated permeable material that yields

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 water under artesian pressure that is or may be extracted and applied

to a beneficial use. The Confined Aquifer includes any formation,

group of formations, or part of a formation containing saturated

permeable material that yielded water under artesian pressure during

the period 1978-2000, whether or not the water level in the formation,

group of formations, or part of a formation is under artesian pressure

conditions at the time of the proposed new withdrawal of ground water.

2. “Confined Aquifer System” means the Confined Aquifer and those

areas in Water Division 3 not overlying a confining layer, but which

provide inflow to the Confined Aquifer.

3. “Well permit application” means an application to construct a well in

accordance with the provisions of section 37-90-137, C.R.S.

4. “Nonirrigated native vegetation” means native grasses, sedges,

rushes, shrubs, trees, or other plants that rely upon precipitation or

shallow ground water for their water supply, including, without

limitation, rabbit brush, greasewood, creosote, cottonwoods, and

willows.

5. “Rio Grande Compact” means the interstate compact between the

states of Colorado, New Mexico, and Texas apportioning the waters of

the Rio Grande and codified at section 37-66-101, C.R.S. (2003)

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 6. “RGDSS” means the Rio Grande Decision Support System, including

the RGDSS ground water model, developed by the Colorado Water

Conservation Board and the Colorado Division of Water Resources.

7. “RGDSS ground water model” means the finite difference model and

its associated modular computer programs developed by the U.S.

Geological Survey to simulate, among other things, the flow of ground

water (commonly known as “MODFLOW”), as adapted and applied by

the Office of the State Engineer to simulate the unconfined aquifer and

the Confined Aquifer System. The RGDSS ground water model

means the model as it currently exists and as it may be revised from

time to time as new data or knowledge of the relationship between the

unconfined aquifer, the Confined Aquifer System, and surface streams

becomes available. The current exterior boundaries of the RGDSS

ground water model are shown on the attached Exhibit 1.

8. “New withdrawal of ground water” means the withdrawal of ground

water from a well not yet in existence, the withdrawal of a new,

increased, or additional supply of ground water from an existing well,

or the conversion of an existing observation or monitoring well into a

production well.

B. Any term used in these rules that is defined in sections 37-90-103 or 37-

92-103, C.R.S., shall have the same meaning given therein unless the

context requires otherwise.

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Rule 5. Principles and Findings

A. In adopting these rules, the State Engineer has been guided by the

recognition that the Rio Grande Basin is a separate entity, that aquifers

are geologic entities and that different aquifers possess different hydraulic

characteristics even though such aquifers underlie the same river in the

same water division, that there exists a shallow unconfined aquifer and a

Confined Aquifer System underlying portions of Water Division 3, that

rules applicable to one type of aquifer need not apply to another type, and

that the hydrology and geology of the shallow unconfined aquifer and the

Confined Aquifer System and their relationship to surface streams in

Water Division 3 are unique and among the most complex in the state.

B. In adopting these rules, the State Engineer has considered the particular

qualities and conditions of the unconfined aquifer and the Confined

Aquifer System and has considered the relative priorities and quantities of

all water rights and the anticipated times of year when demands will be

made by the owners of such rights for waters to supply the same. The

State Engineer has also considered Colorado’s obligations under the Rio

Grande Compact and the manner of administration of water rights

necessary for Colorado to comply with its obligations under the Rio

Grande Compact.

C. The Confined Aquifer is a multi-layered aquifer. Different formations,

group of formations, or parts of a formation in the aquifer have different

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 hydraulic properties that affect the rate and direction of movement of water

in the Confined Aquifer System and the artesian pressures at various

depths in the Confined Aquifer.

D. A ground water model is necessary to consider all the particular qualities

and conditions of the Confined Aquifer System and to determine whether

new withdrawals of ground water from the Confined Aquifer System will

affect the rate or direction of movement of water in the Confined Aquifer

System, as well as the effects of such withdrawals on the unconfined

aquifer, fluctuations in artesian pressures in the Confined Aquifer, and the

flows of natural streams.

E. While there remains some uncertainty about the effect of ground water

withdrawals affecting the Confined Aquifer System upon the natural

stream and aquifer systems in Water Division 3, RGDSS provides a basis

for understanding the relationship between surface streams and the

Confined Aquifer System and the effect of ground water withdrawals from

the Confined Aquifer on fluctuations in the artesian pressures in the

aquifer. Based upon specific study of the Confined Aquifer System, these

rules establish reasonable requirements for any new withdrawal of ground

water within the scope of these rules that will affect the rate or direction of

movement of water in the Confined Aquifer System so as to permit the

development of the water resources of Water Division 3 in a manner that

will protect Colorado’s ability to meet its interstate compact obligations and

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 will prevent injury to senior appropriators in the order of their priorities, and

with due regard for daily, seasonal, and longer demands on the water

supply

F. The Rio Grande Basin in the State of Colorado, including the unconfined

aquifer and the Confined Aquifer System, is over-appropriated. New

withdrawals of ground water from the Confined Aquifer System will cause

changes in the artesian pressures in the Confined Aquifer and will affect

the rate and direction of movement of ground water in the Confined

Aquifer System. Unless properly augmented, new withdrawals of ground

water within the scope of these rules that will affect the rate or direction of

movement of water in the Confined Aquifer System will materially injure

vested water rights and increase the burden of Colorado’s scheduled

deliveries under the Rio Grande Compact.

G. In adopting these rules, the State Engineer has recognized that new

withdrawals of ground water from the Confined Aquifer System shall not

be allowed to cause fluctuations in the artesian pressures in the Confined

Aquifer to fall outside of the ranges that occurred during the period of 1978

through 2000, while maintaining average artesian pressure levels similar

to those that occurred in 1978 through 2000.

Rule 6. Requirements for New Withdrawals of Ground Water in Water

Division 3 Affecting the Confined Aquifer System

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A. The State Engineer shall not issue any well permit that involves a new

withdrawal of ground water within the scope of these rules, including a

well permit for an increased or additional supply of ground water, except

pursuant to a judicially approved plan for augmentation.

1. To determine whether a new withdrawal of ground water from the

Confined Aquifer System will affect the rate or direction of

movement of water in the Confined Aquifer System, the State

Engineer shall rely upon the RGDSS ground water model.

2. In determining whether a new withdrawal of ground water from the

Confined Aquifer System will affect the rate or direction of

movement of water in the Confined Aquifer System, it shall be

recognized that unappropriated water is not made available and

injury is not prevented as a result of the reduction of water

consumption by nonirrigated native vegetation.

B. Any new withdrawal of ground water within the scope of these rules must

prevent injury to the vested water rights of others that would be caused by

the new withdrawal. In addition to all other lawful requirements, the

following requirements shall apply to any new withdrawal of ground water

within the scope of these rules:

1. The applicant for a new withdrawal of ground water from the Confined

Aquifer System shall specify the depth of the well from which the new

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 withdrawal is proposed, the perforated intervals for the well casing, and

the zones where cement grout will be placed. Any decree approving a

plan for augmentation that allows a new withdrawal of ground water

from the Confined Aquifer System shall require that the well shall not

be deepened beyond the depth specified by the applicant without

approval of the State Engineer.

2. Except as provided in Rule 6.B.2.d, to prevent injury to the vested

water rights of others, the applicant for a new withdrawal of ground

water from the Confined Aquifer must change the point of diversion of

or permanently retire an existing vested water right or rights to

withdraw ground water from the Confined Aquifer with historical

withdrawals from the Confined Aquifer equal to the new, increased, or

additional supply of ground water to be withdrawn from the Confined

Aquifer.

a. The vested water right or rights to be changed or permanently

retired must be at a location such that the water to be made

available by permanently retiring the right or rights will prevent

injury to the vested water rights of others from a new withdrawal.

There shall be a rebuttable presumption that any vested water right

to be changed or retired that (1) is located in a different hydrologic

zone, as shown on the map attached as Exhibit 1, than the point of

diversion of the new withdrawal, or (2) withdraws from a different

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 layer in the Confined Aquifer, as defined in the RGDSS ground

water model, than the new withdrawal, is not in a location that will

be sufficient to prevent such injury.

b. The historical withdrawals of the vested water right or rights to be

changed or permanently retired must be supported by records of

totalizing flow meter(s), power records, aerial photographs or other

evidence from which the historical withdrawals can be determined.

c. If the point of diversion of the vested water right or rights to be

permanently changed or retired is a well that will no longer be used,

the well must be plugged and sealed in accordance with the Water

Well Construction Rules adopted by the Board of Examiners of

Water Well Construction and Pump Installation Contractors before

a new well permit will be issued involving any new withdrawal of

ground water from the Confined Aquifer.

d. Nothing in this Rule 6.B.2 shall preclude an applicant for a new

withdrawal of ground water from the Confined Aquifer from

proposing and demonstrating that injury to the vested water rights

of others that would be caused by the new withdrawal, including

fluctuations in the artesian pressures in the Confined Aquifer that

would fall outside the ranges that occurred during the period of

1978 through 2000, can be prevented through recharge or injection

of water into the Confined Aquifer System.

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3. For any new well to withdraw ground water from the Confined Aquifer

System, and if the point of diversion of the vested water right or rights

to be changed or permanently retired is a well that will continue to be

used, a totalizing flow meter or meters must be properly installed and

maintained by the applicant in accordance with the manufacturer’s

specifications at the applicant’s expense, properly calibrated at the

applicant’s expense, and records of withdrawals from the well(s) must

be provided to the State Engineer at least annually. The Division

Engineer must approve totalizing flow meters in advance of their use

and shall establish a list of approved meters. The totalizing flow

meter(s) must be calibrated at the applicant’s expense every four (4)

years by a tester certified by the State Engineer; however, the Division

Engineer may require the meter(s) to be calibrated more often due to

changed circumstances. The State Engineer may approve alternative

means of measuring withdrawals if the applicant can establish that the

alternative means are at least as accurate as measurement by a

totalizing flow meter.

4. A new withdrawal of ground water from the Confined Aquifer System

shall not be allowed to cause fluctuations in artesian pressures in the

Confined Aquifer to fall outside of the ranges that occurred during the

period of 1978 through 2000, and average artesian pressure levels

similar to those that occurred in 1978 through 2000 shall be

maintained.

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5. Because there are only limited times when depletions to the flows of

natural streams in the Rio Grande Basin in Water Division 3 will not

cause injury to senior appropriators or impair Colorado’s ability to meet

its interstate compact obligations under the Rio Grande Compact, the

applicant must demonstrate that replacement water necessary to meet

the lawful requirements of a senior appropriator at the time and

location and to the extent the senior would be deprived of his or her

lawful entitlement, and to meet Colorado’s interstate compact

obligations under the Rio Grande Compact, will be available to replace

all depletions to the flows of natural streams, including a natural stream

defined in section 37-82-101(2) and 37-92-102(1)(b), caused by a new

withdrawal of ground water from the Confined Aquifer System.

6. The RGDSS ground water model shall be used by the State Engineer

to determine the amount, time, and location of depletions and

fluctuations in artesian pressures that would be caused by any new

withdrawal of ground water from the Confined Aquifer System. There

shall be a rebuttable presumption that the version of the RGDSS

ground water model in use at the time an application for a plan for

augmentation is filed accurately determines the amount, time, and

location of depletions and fluctuations in artesian pressures that would

be caused by a new withdrawal of ground water from the Confined

Aquifer System.

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 7. In determining the amount, timing, and location of depletions that

would be caused by any new withdrawal of ground water from the

Confined Aquifer System, it shall be recognized that unappropriated

water is not made available and injury is not prevented as a result of

reduction of water consumption by nonirrigated native vegetation. In

particular, the reduction of water consumption resulting from the

eradication of phreatophytes or the reduction of water consumption by

nonirrigated native vegetation may not be used either: (a) to offset

depletions caused by a new withdrawal of ground water from the

Confined Aquifer System; or (b) as a source of unappropriated water

available for new ground water withdrawals that will affect the rate or

direction of movement of water in the Confined Aquifer System.

Rule 7. Effect of Rules

Well permits issued pursuant to these rules are not exempt from the

requirements of any other lawful rules governing the use of ground water in

Water Division 3, whether now existing or hereafter adopted.

Rule 8. Severability

If any rule or part thereof is found to be invalid by a court of law, the

remaining rules shall remain in full force and effect, including any part thereof

not found to be invalid.

Rule 9. Effective Date.

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 These rules shall take effect sixty days after publication in accordance with

section 37-92-501(1)(g), C.R.S. (2003), and shall thereafter remain in effect

until amended as provided by law. In the event that protests are filed with

respect to these rules pursuant to section 37-92-501, C.R.S., the effective

date of such rules shall be stayed until such protests are judicially resolved

pursuant to the procedures set forth in section 37-92-304, C.R.S.

IT IS FURTHER ORDERED that any person who wishes to protest these

proposed rules may do so by filing a protest in writing with the Division 3 Water Clerk in

Alamosa, Colorado, in the same manner as for the protest of a ruling of the referee.

Any such protest must be filed by the end of the month following the month in which

these proposed rules are published.

Dated this 30th day of June, 2004.

____________________________
Hal D. Simpson
State Engineer
State of Colorado

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