Counties often require proof of an adequate water supply as a condition of land use approval. Where a development will not be served by a central water provider such as a city or metro district, counties may refer a proposed water supply plan to the State Engineer for review. Previously, such State Engineer review was limited to subdivision applications. In 2011, the State Engineer enacted new policies for the review of water supplies which now apply to land divisions even when they are exempt from the county subdivision process.
Under Colorado law, a “35-acre exempt well permit” may be obtained for a parcel of land that is 35 acres or larger, and the well can be used to serve up to three houses plus one acre of irrigated land, fire protection, and the watering of poultry, domestic animals and livestock. Until recently, if such a permit was already in place, counties permitted the landowner to divide the land and rely on the exempt well to serve the same number of houses and irrigated area on separate parcels. That has now changed.
In 2011, the State Engineer issued a new policy and memorandum to all county land use planning directors recommending that all proposed divisions of land (including subdivision exemptions) with existing wells or well permits be forwarded to the State Engineer for review. If the proposed land division will result in a well being located on a new parcel of land that is smaller than the acreage required for issuance of the original permit, then the State Engineer will recommend the county to require a new permit.
This policy eliminates the possibility of sharing an existing 35-acre exempt well between newly created, smaller parcels. Instead, each new parcel – including the parcel on which the existing well is located – will have to obtain a new well permit or water supply consistent with the new parcel size (if less than 35 acres). The only exempt well that may be used for residential purposes on a parcel of land that is less than 35 acres is for in-house use only inside one single-family dwelling. Therefore, any irrigation or other outside water use would have to be supplied from another source.
Each county in Colorado will need to decide whether to comply with this recommendation, so the practical implications of the new policy may depend on where a subject property is located. Both Eagle County and Garfield County are following the recommendation.
Property owners considering a division of land that is not served by a central water service provider should consult with an experienced water attorney before pursuing an application with their county land use planning department. For more information about our water law practice, please visit www.garfieldhecht.com.