Parker Water v. Rein.

2024 CO 71. No. 23SA141. Water Law—Nontributary Groundwater—Well Permits—Groundwater Management—Rights in Owner of Overlying Lands—Statutes, Regulations, and Rules—Statutory Interpretation.

November 4, 2024

This case concerns the state engineer’s authority to limit the total volume of nontributary groundwater that may be withdrawn from the Denver Basin aquifers over the lifetime of a well permit.

The Supreme Court concluded that, under the plain language of CRS § 37-90-137, and the Statewide Nontributary Ground Water Rules, any well permit issued for the withdrawal of nontributary groundwater from the Denver Basin aquifers necessarily imposes a total volumetric limit on the amount of water that may be withdrawn, whether expressly stated or not, unless an underlying water court decree determining a right to use that water explicitly provides otherwise. This total volumetric limit is equal to the quantity of nontributary groundwater underlying the land owned by the applicant as determined by the state engineer at the time that the well permit is issued, absent any statutorily authorized adjustments. Pumping beyond this limit would allow a permittee to take nontributary groundwater that belongs to other permittees, all of whom also have a vested right to use the nontributary groundwater underlying their land in the amounts determined by the state engineer at the time their permits were issued.

Because the relevant statutory provisions and regulations unambiguously set forth and require such a volumetric limit, the Court affirmed the orders issued by the water court in Water Division One, which correctly concluded that the state engineer has the authority to expressly include that limit in well permits.