Although Colorado was a leader in adopting surface water doctrines, it was one of the last western states to address groundwater policy. Colorado's first water code (1879) failed to provide for the administration of groundwater rights; leaving its use largely unregulated. Colorado's first groundwater statutes were passed in 1957. One of the primary distinctions in Colorado law is the groundwater's relationship to surface flows, whether it is "tributary" or "nontributary." Tributary groundwater is known to be hydrologically connected to surface water and therefore subject to prior appropriation. However, Colorado law considers all groundwater to be "nontributary" except groundwater connected to surface water, "designated groundwater," and groundwater which will not influence the rate or direction of movement in a surface flow within 100 years.
Largely because of this distinction, Colorado groundwater law has
evolved retroactively, enacting ineffective band-aid legislation that
solves fewer problems than it creates. Recommendations from the
Governor's-appointed Getches Committee, research and recommendations from
the State Engineer's Office, and judicial pressure have all identified
problems; recommending a proactive, comprehensive groundwater adjudication
and allocation system. Statutory reform has, however, been subject to
political compromise, failing to address problems within the law itself
and discrepancies between it and refined knowledge of hydrology. Colorado
should examine the successes of neighboring western states in adjudicating
and allocating groundwater, particularly those that have successfully
integrated modern hydrogeology (through the State Engineer or similar
office) into the process. The Colorado State Engineer could make the
necessary geologic determinations, and then, based on hydrologic data and
hydrogeologic principles, approve well permits and water rights. This
would avoid lengthy and expensive judicial proceedings, which in Colorado,
have been reiterations of the State Engineer's findings before a
nontechnical authority. While several other western states have
successfully advanced the integration of science into law, Colorado still
requires that all water rights be determined judicially. Colorado law,
both past and present, has failed to eliminate the segregation between
hydrogeology and groundwater law.
