They are not few and far between—rather, the vast majority of rivers in Colorado (or at least large reaches therein) have been designated as over-appropriated. This year, Colorado’s White River joins the list. The White River flows from northwestern Colorado to its confluence with the Green River in Utah. Its basin spans a diverse range of topography and climate, with the eastern portion at higher elevation with deep valleys and forests with pine and aspen trees, and the western portion being considered a high desert consisting of pinyon and juniper trees with sagebrush and similar vegetation.

The question of over-appropriation arose in December 2022 when the Rio Blanco Water Conservancy District (RBWCD) placed a call on the White River for power generation use at the Taylor Draw Power Conduit (Power Conduit). The Division Engineer for Colorado’s Water Division 6 determined RBWCD’s Power Conduit call was likely to be ongoing, which triggered a review by the Division Engineer regarding over-appropriation. Under the Colorado State Engineer’s guidelines, a stream is considered over-appropriated when “at some or all times of the year, the water supplies of said stream system are insufficient to satisfy all the decreed water rights within that system.” In conducting the review of the White River, the Division Engineer found that extended drought and hotter temperatures are preventing appropriators from receiving their decreed amounts of water. Further, the Division Engineer noted that development in the basin is projected to increase. Thus, the Division Engineer’s report found, and the State Engineer agreed, the White River meets the definition of over-appropriated.

A determination of over-appropriation does not impact the legal ability to appropriate water from the White River nor does it change administration of surface water rights on the White River. Instead, an over-appropriation designation provides the formal basis for the Colorado Division of Water Resources (DWR) to consider the injurious impacts of wells during DWR’s evaluation of new applications for well permits. Prior to the designation, an applicant could apply for and receive a well permit from DWR for various exempt uses that would not be subject to priority administration. Now, as depletions from new wells may materially injure other appropriators and because wells cannot be instantaneously curtailed, if a permit is sought for uses beyond those provided in C.R.S. § 37-92-602(3)(b)(II)(A), a permit may only be issued under C.R.S. § 37-90-137(2), which triggers the need to seek approval of a plan for augmentation designed to replace depletions associated with the use of water from the well. Accordingly, obtaining a legal water supply in the White River Basin now likely requires adjudicating a water right and plan for augmentation in water court.

For questions regarding this topic, please contact:

• Ryan Mitchell, rmitchell@somachlaw.com

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