As a result of increasing demand for water, exacerbated by the decades-long drought in the Colorado River system, the Colorado State Engineer is considering a proposal that would impose stricter limitations on the permitting of new groundwater wells in the Yampa River Basin upstream of where the Yampa River meets the Little Snake River.  The Yampa River flows west from its headwaters near Steamboat Springs, in northwest Colorado.  After it is joined by the Little Snake River, it flows to meet the Green River near the Colorado-Utah state line.  From there, the Green River flows south as a major tributary of the Colorado River.

The proposal comes after two years, 2018 and 2020, when scarce water supplies forced the Colorado Division of Water Resources (DWR) to curtail junior water users on the Yampa River to allow a senior rights holder to take water from its point of diversion near the Little Snake confluence.  That is, the Yampa River “went on call” above the Little Snake.  Each call lasted a matter of weeks.  While this was unusual for the lower Yampa River, on most of Colorado’s rivers and streams curtailment of junior water users is routine because DWR considers nearly all the streams in the state to be over-appropriated, including the Yampa River upstream of the Steamboat Springs area.  A stream system is over-appropriated (or water “critical”) when, at some or all times of year, water supplies are inadequate to satisfy the needs of all decreed water rights holders.  Simply put, the demand on the river exceeds the available physical supply.  In fact, the only stream systems that are not over-appropriated are in the northwest and southwest corners of the State, including the Yampa River downstream of its confluence with the Little Snake River.  The State Engineer’s proposed permitting limitations would apply to new, not existing, wells located upstream of where the Yampa River meets the Little Snake River.   Whether DWR will adopt the proposed changes hinges on whether the agency finds that this upstream section of the Yampa River Basin is “over-appropriated.”

What is the geographic scope of this decision? What area will be affected by this?

This decision concerns the Yampa River Basin upstream of its confluence with the Little Snake River.  If you own property or water rights along the Yampa River or tributaries of the Yampa River, this decision could affect you, particularly if you have plans to drill a new groundwater well.  The specific area proposed for designation as over-appropriated is identified in the picture below, labeled as “Figure 2.”

 

What types of wells and water rights will this designation decision affect?

This designation decision will directly affect:

• New Groundwater Wells. The designation decision will directly affect the permitting of new groundwater wells, both exempt and non-exempt, in the Yampa River Basin upstream of the River’s confluence with the Little Snake River.

This designation decision will not directly affect:

• Existing Groundwater Wells. The designation decision will not directly affect existing or replacement groundwater wells and permits, unless later amended to allow for new or additional uses.
• Surface Water Rights. The designation decision will not directly affect how surface water rights are granted or administered in the Yampa River Basin.  However, by imposing stricter limitation on the permitting of groundwater wells, the changes would better protect surface rights holders from the hydrologic impacts of well pumping.  Additionally, if this section of the Yampa River is designated as over-appropriated, it would signal to new surface water rights seekers that any new, junior rights they acquire will likely be out-of-priority at certain times of the year.
• Downstream Wells. The designation will not affect the permitting process for new and existing wells in the Yampa River Basin downstream of the River’s confluence with the Little Snake River.  Additionally, the Yampa River is already designated as over-appropriated upstream of Steamboat Springs.

How would an “over-appropriated” designation affect the permitting of new wells?

In Colorado, groundwater rights, like surface water rights, are generally subject to administration under the priority system.  However, some smaller-producing wells and wells devoted to specific types of uses may be made “exempt” from administration under the priority system, meaning that DWR will not curtail pumping from these wells to meet the needs of senior water rights holders.  An over-appropriated designation along the Yampa River would affect the permitting of new wells, both exempt and non-exempt, in several ways, foremost of which include:

How do these new rules follow from an over-appropriated designation?  Why do these new rules apply when demand on a river exceeds the available physical supply?

In an area considered to be over-appropriated, DWR applies existing statutes to require augmentation plans or impose other limitations under its authority regarding permitting of domestic exempt wells.  This more conservative approach is applied in the rest of the state and serves to protect existing water rights from injury.  Thus, if the State Engineer designates the Yampa River Basin as over-appropriated, the scope of permissible uses for new exempt wells will be narrowed, and for non-exempt, general purpose wells, DWR will only issue permits where an augmentation plan (or, in some cases, an SWSP) is in place.

What is the timeline for this decision?

The Division Engineer for Division 6, Erin Light (erin.light@state.co.us), and the Colorado State Engineer, Kevin Rein (kevin.rein@state.co.us), are currently accepting comments on the Division Engineer’s written report requesting that the Yampa River segment be designated as over-appropriated.  A copy of the written report is available here.

The 30-day comment period opened on March 19, 2021.  There is no fixed timeline under which the State Engineer will decide whether to accept the Division Engineer’s proposal or when the designation would formally take effect.

Can I apply for a new well permit under the current rules before any changes take effect?

Yes.  DWR will apply the current well permitting rules in processing well applications up to and until any new over-appropriated designation takes effect.  Once a well permit is issued, the permittee typically has one or two years to drill the well under the terms of the permit and can seek extensions of time in some circumstances.

Where can I learn more about this?

The DWR “Yampa River Over Appropriation” announcement can be found here.  The announcement includes a hyperlink to the Division 6 Division Engineer’s report to the State Engineer requesting that the section of the Yampa River Basin be designated as over-appropriated and also includes a hyperlink to a March 8, 2021 video presentation by DWR.

For additional information please contact Daniel McCarl at dmccarl@somachlaw.com.

Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only.  This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice.  In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn.

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