A tributary well field is not defined in the Colorado Water Code. However, water courts have entered decrees allowing for the designation of tributary well fields. In general, a conditional water right is decreed for a well field that allows the pumping of water from a set number of wells within a specified geographic area. Well field water rights often include volumetric limits for the individual wells and their cumulative diversions. For municipal and other water providers, a well field water right provides flexibility to determine the most productive well sites as water demands increase.
Where an applicant seeks to decree a well field in an over-appropriated basin, the applicant must also apply for an augmentation plan with sufficient detail to demonstrate non-injury to vested, senior water rights. Augmentation plans operate to replace depletions with substitute water supply in an amount necessary to prevent injury to other water rights, including delayed depletions caused by well pumping. A water court evaluates a well’s out-of-priority depletions on numerous factors, including the timing and location of depletions as well as the availability of replacement water. Depending on local conditions, lagged depletions can take anywhere from days to years to fully impact local surface water. Water engineers account for lagged depletions in an augmentation plan by relying on computational models that use unit response functions (URFs) to quantify timing and amount. Thus, if the specific location of a conditional well is not known, the exact lagged depletions cannot be determined at the time a decree is entered, and therefore, it may prove difficult to tailor a sufficient augmentation plan for the well.
The Colorado Supreme Court recently identified this issue in Firestone v. BCL Colorado LP, et al. There, the Court highlighted that the Town of Firestone’s (Firestone) application for several conditional well fields and an augmentation plan was deficient because the specific well locations were not provided. Without providing the well locations, Firestone’s engineers could not develop well-specific URFs, which prevented Firestone from evidencing an augmentation plan that would meet Firestone’s burden of showing non-injury. Further, the Court ruled that Firestone cannot rely on the water court’s retained jurisdiction to determine the issue of injury after the well locations are determined.
Accordingly, while the Firestone Court made clear that it was not creating a bright-line rule about well fields, future well field applications likely need to include a set number of wells with specific drill locations. Separately, the Court did not provide any hints as to whether decreed conditional well fields with unspecified well location are at risk during their diligence periods. This is an important question that practitioners should be prepared to analyze.
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