In areas where there is not enough water for all uses, man-made ponds, even those that have existed for decades, must have a legal means of storing or exposing water to evaporation. Man-made ponds consume water that senior water rights are entitled to.
The Division of Water Resources (DWR) is systematically reviewing ponds in several areas of Colorado where ponds without legal authorization have a substantial impact on the stream system.
Arkansas Basin Pond Management
The Division 2 Office initiated a Pond Management Project in 2021 to review ponds within the Arkansas River Basin to ensure compliance with legal water obligations to Colorado water rights and a downstream state.
In Colorado, the use of water is governed by what is known as the “Prior Appropriation System”, meaning that those with the most senior water rights have first use of the river. This system of water allocation works well in a dry, western state like Colorado where water supply is limited. This system of water laws manages who uses how much water, the types of uses allowed, and when those waters can be used.
In the first phase of the Pond Management Project, brochures were mailed to pond owners in January of 2021. The brochure contained the local Water Commissioner's contact information for the pond owner to arrange an inspection. During the inspection, water commissioners go over options and connect pond owners with organizations like local water conservancy districts that work with landowners on pond and water supply issues
For additional details on the Pond Management Project, including options available for obtaining replacement water for your pond, see the Arkansas Basin Pond Management Folder in the Informational Guides and Brochures Section below. This folder contains frequently asked questions (FAQ’s), a pond management brochure, and augmentation plan contacts.
Designated Basins Pond Management
The specific laws related to ponds are slightly different in areas of eastern Colorado mapped as Designated Ground Water Basins. However, the same general principle that a permit and replacement plan (similar to a plan for augmentation, but within a Designated Ground Water Basin) are required for exposed ground water in an over-appropriated system apply. In addition, pursuant to an opinion issued by the Colorado Supreme Court in November of 2015, water flowing on the surface of the ground (i.e. precipitation runoff) within a Designated Ground Water Basin that contributes to the recharge of the aquifer is designated ground water. Therefore, dams impounding precipitation runoff on the surface of the ground, and excavated ponds, are both administered by the Colorado Ground Water Commission as structures that divert designated ground water.
Due to concerns about injury to senior water rights raised by the Upper Black Squirrel Creek Ground Water Management District, in 2018 staff of the Colorado Ground Water Commission began a systematic investigation of unpermitted ponds throughout the Upper Black Squirrel Creek Designated Ground Water Basin, which is generally in the vicinity of Ellicott and Peyton. The investigation reviews all surface water features, including both excavations that expose ground water and ponds that impound precipitation runoff. Staff will coordinate its investigation with the Upper Black Squirrel Creek Ground Water Management District.
The investigation, which is expected to continue for 5 years involves the following steps as the staff investigates the area in a pattern roughly from north to south within the District:
For frequently asked questions (FAQ's), see the Designated Basins Pond Management Folder in the Informational Guides and Brochures Section below.
Those doing restoration work in the stream should be mindful to comply with Colorado law, not injure water rights or interstate compact obligations, and not impact the function of existing decreed diversions and flow measurement structures.
There is no statutory requirement for project proponents to obtain input from DWR prior to commencing such a project. Nevertheless, DWR staff receives requests for input on a variety of proposed projects including stream and wetland mitigation, enhancement, improvement, stabilization, and restoration. If a project proponent requests input, our staff will review the project and consider, based on the range of conditions in the vicinity of the project site, whether certain project elements will result in injury to vested water rights.
The response will describe if the project will require the Division Engineer to issue an order, particularly one of the following types:
(1) discontinue a diversion that is causing material injury
(2) release any water that has been illegally or improperly stored
(3) clear streams of unnecessary dams and obstructions that restrict or impede the flow of water
(refer to sections 37-92-501 and 502, Colorado Revised Statutes, for information about DWR’s authority to administer water and issue orders).
Further, DWR staff will note that any project element exposing groundwater should not be constructed without first obtaining a well permit from DWR.
If DWR provides comments about a proposed project, the comments are provided for information purposes only. The comments should not be considered official approval or denial of a project because DWR does not have permitting authority over such projects. If a restoration project will result in material injury to water rights, in most cases approval of the project operation should be obtained from the water court, most likely in the form of an augmentation plan that prevents injury. Temporary written approval may be obtained through an application for a Substitute Water Supply Plan. Water attorneys and engineers can provide assistance in obtaining these approvals.
Project elements that are unlikely to trigger DWR’s statutory administrative authority include the following:
Any activity or project that is causing material injury to vested water rights is subject to enforcement by the State and Division Engineers, including orders to cease and desist the activities that are causing injury.