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Water Rights Resources

Water law is complex, nuanced, and can be difficult to understand. We delve into common water law concepts and provide tutorials that describe how it use publicly available tools to learn more about water rights. To this end, below are a series of articles that are designed to help parties develop a general understanding of some of the basic principles of water law. The information provided below is for educational purposes only and if you have specific questions about your water rights, please contact the attorneys at Nazarenus Stack & Wombacher for legal advice. Use of this information is explicitly subject the website disclaimer available here.

Augmentation Requirements for Gravel Pits

Gravel mining is common along the rivers in Colorado, but presents a unique water rights issue.  Most gravel is mined in open pits along rivers and exposes groundwater to the air as part of the mining process.  The Colorado Supreme Court has determined that the exposure of this groundwater to the air amounts to an “appropriation” of water and that, as a result, gravel pits meet the definition of a “well” under Colorado law.  While mine operators likely view this groundwater as a nuisance that must be managed as part of the mining process and not as an intentional use of water, the Colorado Supreme Court held that the term “beneficial use” is defined broadly and applies even where water is left exposed in a gravel pit and where it is diverted solely for the purpose of disposal.  See Vance v. Wolfe, 205 P.3d 1165 (Colo. 2009); Zigan Sand and Gravel, Inc. v. Cache La Poudre Water Users Ass’n, 758 P.2d 175 (Colo. 1988); Three Bells Ranch Assocs. v. Cache La Poudre Water Users Ass’n, 758 P.2d 164 (Colo. 1988). 

As a result of the foregoing, sand and gravel mines must obtain a well permit from the State Engineer prior to exposing ground water to the atmosphere.  C.R.S. § 37-90-137(11)(a).  Gravel pits that expose ground water are also generally required to obtain a plan for augmentation to replace the evaporative losses which result from the exposure of the ground water.  Id.  The purpose is to prevent injury to other water rights, and well permits are not to be issued unless “the vested water rights of others will not be materially injured.  C.R.S. § 37-90-137(2)(b).

There is, however, one exception to this general rule.  Section 37-90-137(11)(b) waives the requirement to obtain a well permit and to augment or replace evaporative depletions from ground water exposed by sand and gravel open pit mining prior to January 1, 1981.  Section 37-90-137(11)(b) states:

 If any ground water was exposed to the atmosphere in connection with the extraction of sand and gravel by open mining as defined in section 34-32-103(9), C.R.S., prior to January 1, 1981, no such well permit, plan for augmentation, or plan of substitute supply shall be required to replace depletions from evaporation; except that the burden of proving that such ground water was exposed prior to January 1, 1981, shall be upon the party claiming the benefit of this exception.

 This exception is extremely narrow and is explicitly limited to depletions that result from evaporation. 

             If you have questions about gravel pits or the need for an augmentation plan to offset evaporative depletions, please call the attorneys at Nazarenus Stack & Wombacher LLC for assistance.

William Wombacher