colorado water law

Keli R McMillen

Article Strawn Lain 2004 The last GASP The conflict over management

of replacement water in the South Platte River basin University of Colorado

Law Review 75 U Colo L Rev 597-632

Summary

In 1991 House Bill 91-1154 passed the Colorado Water Conservation

Act requiring all water providers with annual demands of 2000 acre-feet or

more to have an approved Water Conservation Plan on file with the State

(Kathlene 2010) During the Colorado drought of 2000-2002 water supply

and appropriation in the lower South Platte River region of Colorado became

a critical statewide problem affecting many senior and junior rights users

profoundly The state experienced the most severe single-year (2002)

drought on record prompting Colorado lawmakers to consider forty-three

water bills and resolutions many aimed at statewide drought relief

(Legislation Summary 2003 Appendix)

Not only were agricultural municipal industrial and recreational

activities affected by reduced streamflow during the drought but problems

of silt accumulation increased salinity turbidity and temperatures

threatened riparian and aquatic survival by creating a cascade of degrading

water quality effects (McMahon 1996) In Colorado the water courts

oversee the adjudication of water rights focusing on amount and quality of

water received under a right while the Colorado Water Quality Control

Commission oversees strict issues of water quality Each of these entities is

governed by two Colorado statutes that play an integral role in preserving

water quality CRS 37-92-305 and CRS 37-80-120 (Sower-Hall 1997)

On the Federal level water quality and potential degradation resulting

from over-use practices are governed by the Clean Water Act (CWA)

Sections 301 and 303 33 USC S 1311(a) and 40 CFR S 1222 The

Wallop Amendment of 1977 in CWA section 101(g) urges cooperation

within state and local agencies to develop comprehensive solutions to

prevent reduce and eliminate pollution in concert with programs for

managing water resources 33 USC sect 1251(g)(1988)(sponsored by

Senator Wallop of Wyoming and Senator Hart of Colorado 123 Congr Rec

39 211 see Appendix B)(Pifher 1995 Strawn 2004 Sullivan 2007)

Colorado prides itself on being proactive in the arena of interagency

cooperative resource management

Topics to be evaluated in the 2004 Strawn study are the primary and

secondary (senior and junior water rights) water allocation methods utilized

pre- and post-2002 Colorado drought with particular emphasis placed on

problems associated with water augmentation and replacement practices

Court decisions resulting from the Simpson v Bijou (2003) case are

summarized to provide a historical backdrop for Colorado water law by

challenging the provisions of the Colorado Doctrine and the administrative

role of the Office of State Engineer (SEO) (Shimmin 2002) Analyzed from

the perspective of the Plaintiff (Bijou Irrigation Company) this study

evaluates the authority of the Defendant State Engineer Hal Simpson to

the extent that he overstepped the boundaries of his administrative duties in

a historical decision made by the Colorado Supreme Court (2003) regarding

the SEOrsquos issuance of supplemental water supply plans pursuant to CRS

37-92-308 Simpson v Bijou Irrigation Co 69 P3d 50 (Colo 2003)

The organizational format of this analysis is as follows i) providing

background perspective on the Colorado Doctrine of Prior Appropriation and

supplemental and augmentation plans providing case examples relevant to

decisions made in the Simpson v Bijou Irrigation (Colo 2003) case ii)

summarizing and analyzing constituent rules statutes and legislation

specific to the Simpson case iii) discussing environmental water quality

issues related to the drought and over-allocation problems in the lower

South Platte River Basin and making recommendations for water

conservation practices and finally iv) providing a position statement in

support of the Colorado Supreme Courtrsquos decision in the Simpson v Bijou

Irrigation (Colo 2003) case

Background

1 Prior Appropriation Surface and tributary groundwater

allocation and the case of Fellhauer v People (Colo1968)

As a result of the 1923 South Platte River Compact (CRS 37-65-

101) principal statutes of the water right adjudication process in the ldquoWater

Rights Determination and Administration Act of 1969rdquo (the ldquoWater Rights

Actrdquo CRS sectsect37-92-101 through -602 Water Court Committee 2000) and

the Colorado Ground Water Management Act sectsect 37-90-101 through -143

CRS (the ldquoGround Water Actrdquo) the State Engineer must protect existing

water rights against injury by curtailing out-of-priority diversions (junior

water rights and augmentation plans) of ground water that cause material

injury to vested senior water rights CRS sect 37-92-502 Simpson v Bijou

69 P3d 50 67 (Colo 2003)

The governing body for water allocation in Colorado is the Colorado

Division of Water Resources Office of State Engineer who has been

empowered to administer all water rights according to the Appropriation

Doctrine over the last century based principally on three parts (1) first in

time first in right (2) the right to divert and (3) putting the water to

beneficial use Coffin v Left Hand Ditch Co 6 Colo 443 (1882) Irwin v

Phillips 5 Cal 140 (1855) (Strawn 2004) Under this doctrine a person

may obtain a senior usufructuary right to the water if he diverts water from

a stream and puts it to beneficial use before someone else Colo Const art

XVI 5 (1876)

Priority however is not the only criteria used to create a valid water

right The right must also be adjudicated (decreed by a court) in order to be

legally used The process of adjudication begins with filing an application

with the Water Court in the Water Division where the right is located specific

to the proposed use of that right (Colorado Water News 2010)

Surface and tributary groundwater are allocated to users based on

prior appropriation The Colorado Ground Water Commission allocates

ldquodesignated ground waterrdquo Surface and tributary groundwater feed each

other in a hydrological cycle in which groundwater occurs through

precipitation or surface water that percolates downward perpetuating the

water cycle (recharge) between the earth and the atmosphere through

evaporation precipitation infiltration and runoff Rural areas rely on

approximately 95 of this groundwater for consumptive use while urban

residents rely on it for 50 of their needs (Dunford 2003 Purdue 2010)

Tributary groundwater is water that is hydraulically connected to a

surface stream or an alluvial aquifer such that it can influence the rate or

direction of movement of the stream or aquifer CRS 37-92-103(11)

(Strawn 2004) Under Colorado Law the use of all subsurface water

hydraulically connected to a surface stream the pumping of which would

have a measurable effect on the surface stream within one hundred years is

subject to the doctrine of prior appropriation (Hobbs 2004) It is important

to understand that tributary aquifers and rivers are linked and wells pumping

from tributary aquifers take water from the river as if they are surface

diversions depleting available supplies and potentially causing injury to

existing senior surface rights (Strawn 2004 Castle 1999) Prior to the 1969

Act unregulated wells pumped freely at the users discretion and many

farmers based their livelihood on this unrestricted well usage

During the era of unregulated well use which lasted from the late

1940s until early 1960s farmers living within Colorados river basins drilled

wells to irrigate their crops The wells took water from the flow of a river

which over time affected the tributary aquifer ushering in the beginning of

the ldquowell problemrdquo It wasnrsquot until establishment of the 1957 Colorado

Ground Water Law that permitting of ground water wells was required

(CDWR 2010 Strawn 2004) There are currently multiple Colorado statutes

regulating well usage and defining river call priorities (CRS 37-92-301

302 305 306 501 502)

One example of this problem is exemplified in the case of Fellhauer v

People 447 P2d 986 994 (Colo1968) in which coalitions of senior surface

water users formed in the Arkansas River Basin to force the SEO to regulate

the wells that were diverting water out of priority Legislation effective in

1966 permitted the SEO to shut down the wells harming senior rights

However Mr Fellhauer a farmer along the Arkansas River whose farm

depended upon pumping water from his wells refused to allow curtailment

of his 39 wells Litigation ensued to the level of the Colorado Supreme Court

between the rural coalition and Fellhauer where it was determined that wells

should be administered under the prior appropriation system (MacDonnell

1988 Strawn 2004)

Legislation was enacted in 1969 following the Fellhauer decision

establishing two provisions within the Colorado Water Rights Determination

and Administration Act that are relevant in the Simpson v Bijou (2003)

case conjunctive use and the doctrine of prior appropriation The provisions

required the complete integration or ldquoconjunctive userdquo of surface and

groundwater uses in all of Colorados river basins by creating two

administrative mechanisms augmentation plans and substitute water supply

plans (SWSPs) (MacDonnell 1988)

These plans were intended to integrate surface diversions and

tributary groundwater well depletions thereby achieving maximum or

optimum utilization of Colorados water resources in accordance with the

objectives of the 1969 Act Fellhauer v People 447 P2d 986 994

(Colo1968)(MacDonnell 1988) And though the 1969 Act defined an

augmentation plan as a ldquodetailed program temporary or perpetual in

duration to increase the supply of water available for beneficial userdquo the

planrsquos intended use was to maximize the beneficial use of water by allowing

out-of-priority uses that would otherwise be subject to curtailment by the

State and Division Engineers Because they were designed to allow the out-

of-priority use of water applications for approval of augmentation plans

began creating controversial and highly contested water court cases (Caile

2008)

2 The decreed appropriation case of Empire v Moyer (2001)

signaling the beginning of the end for GASP

Decreed appropriators along a small tributary of the Arkansas River

succeeded in bringing their case before the court in Empire Lodge

Homeowners Assn v Moyer 39 P3d 1139 (Colo 2001) The decisions in

this case signaled the beginning of the end for the South Platte River users

association GASP when in 2003 the Colorado Supreme Court determined

that the SEO had also exceeded its authority to approve SWSPs along the

lower South Platte At trial the SEO testified that in 1986 it notified Empire

that in order to be allowed to continue to divert water out of priority it

needed to file for and receive a decreed augmentation plan from the water

court Twelve years later Empire still had not filed for an augmentation plan

with the water court but it continued to appropriate water out of priority

with annual approval from the SEO under an SWSP

In March 2000 the water courts decree dismissed Empires claims

against the Moyers issuing an injunction against Empires out-of-priority

diversions The court observed that the SEOs authority cannot substitute

for or inappropriately intrude upon the authority of the water courts to

adjudicate water rights Furthermore the court determined that because

the SEO interfered with the water courts ability to protect senior users

vested water rights the water court was justified in taking steps to return

control of the states water resources to the courts by way of strictly

interpreting the doctrine of prior appropriation and narrowly interpreting the

power of the SEO The water court found that the SEO had far exceeded its

authority by repeatedly approving Empires SWSP without evidence that

Empire had filed for an augmentation plan Thus the water court found the

SWSP illegal (Strawn 2004 Caile 2008)

On appeal the Colorado Supreme Court affirmed the water courts

ruling and held in pertinent part that (1) Empires out-of-priority diversions

required a decreed augmentation plan that authorized such diversion (2)

the water court did not abuse its discretion in enjoining Empires out-of-

priority diversions pending approval of a permanent replacement plan from

the water court and (3) Colorado Revised Statutes 37-80-120 and 37-92-

308 did not grant the SEO authority to approve SWSPs The opinion of the

court caused a chain reaction calling attention to the SEOs activities in going

beyond its statutory authority and infringing upon the duties exclusive to the

water court adjudicating water rights through material injury

determinations The Empire decision culminated with the enactment of

House Bill 02-1414 in 2002

Shortly thereafter the drama shifted from the Moyers and Empire to

the decreed and undecreed appropriators along the entire lower South Platte

River

3 Supplemental Water Management and CRS 37-92-308

As surplus water supplies dwindled from the 2002 drought existing

appropriators in particular those with decreed augmentation plans operating

along the lower South Platte River demanded that laws outlined in the 1969

Act governing the management of supplemental water supply plans (SWSPs)

and replacement water be more rigorously enforced by the Office of State

Engineer (SEO)

In the case of Simpson v Bijou (2003) that ensued following decisions

made in the 2002 Empire v Moyer case municipalities agricultural

industrial and state engineering administrative usage patterns came under

scrutiny resulting in curtailment of the SEOrsquos authority to approve SWSPs

repealing Colorado Revised Statutes 37-92-308(1)(c) and 37-80-120

However trouble had began percolating in the State Engineerrsquos Office prior

to this when the SEO filed Amended Rules and Regulations Governing the

Diversion and Use of Tributary Ground Water in the South Platte River Basin

Colorado with the Weld County Court in Water Division I On the positive

side the proposed rules reorganized and partially repealed the extant rules

for the South Platte River Basin adopted in 1972 However it was contested

that the State Engineer had exceeded his authority when he asserted two

independent bases for promulgating the water power rule set forth in CRS

37-92-501(1)(2002) and the compact power rule set forth in CRS 37-80-

104 (2002)

Colorado water law evolves over time according to supply and demand

largely due to the fact that water in Colorado is a public resource whose

management is constantly under scrutiny by a multitude of users For

example from the 1970s through the 1990s there was a history of issuance

of a large numbr of ldquotemporary substitute supply plansrdquo (TSWSPs) some

involving hundreds of irrigation wells being approved annually in South Platte

River basin by the State Engineer These large TSWSPs included plans

approved for groups like Groundwater Appropriators of South Platte (GASP)

and Central Colorado Water Conservancy District (ldquoCentralrdquo) (Simpson 2006

Caile 2008) The difficulty with administrative leniency in issuing temporary

augmentation options is that it breeds a culture perhaps spanning several

generations of farmers who build their businesses reliant upon such

practices Decisions in the case of Kuiper v Atchison (Colo 1978) in a

proceeding to determine the validity of a proposed amendment to rules

governing the use of ground water contributed to what later became the

Water Power Rule CRS37-92-501(1)(2002) stating that regulations of the

state engineer are presumed to be valid until shown differently after which

time the state engineer is required to provide burden of proof by a

preponderance of the evidence Kuiper v Atchison T amp SF Ry 195 Colo

557 581 P2d 293 (1978)

Water allocation problems that arose in Colorado the years following

the 2000-2002 drought were shown to be directly correlated to depletion of

the statersquos water supply resulting not only in tensions between decreed and

undecreed water appropriators in the lower South Platte River region but

impacting hundreds of well users and owners of senior surface water rights

owners operating on augmentation plans many of them members of GASP

and Central or residents and farmers in Boulder Sterling and Highlands

Ranch whose rights had been severely compromised (Caile 2008)

In Simpson v Bijou Irrigation Co 69 P3d 50 (Colo 2003) the

Colorado Supreme Court decided that the State Engineer Hal Simpson had

violated the water power rule by issuing substitute water supply plans

routinely without enforcing the ldquotemporary issuerdquo nature of their intent

Decreed users claimed that the administering body the SEO had exceeded

its authority by approving substitute water supply plans (SWSPs) year after

year for over three decades without review causing what many believed to be

illegal pumping from tributary groundwater wells (Strawn 2004 Section 603)

On the other side of the argument the State Engineer and the

Groundwater Appropriators of the South Platte River Basin Inc (ldquoGASPrdquo)

claimed that specific statutory directives conferred upon the State Engineer

the authority to make rules approving temporary ldquoreplacement plansrdquo as

provided for in the 2002 proposed rules Simpson v Bijou Irrigation CoNo

02SA377(Colo 2002)

During the drought however tensions escalated between senior

decreed users and junior water rights users (many operating with

supplemental water supply plans with no intention of filing an application for

decreed augmentation) when river calls made by senior users that had

traditionally lasted strictly during the height of the irrigating season from

July to August began in June 2003 and remained on through the remainder

of the year thus depriving junior users of valuable irrigation resources The

senior river calls in 2004 were identically devastating to all who depended

on water from South Platte River (Simpson 2006)

Similar to the process of decreed appropriation to satisfy a Plan for

Augmentation individual contractees are required to obtain a Court-decreed

Plan for Augmentation in order to fulfill their water needs Alternatively the

District periodically files a group Plan for Augmentation on behalf of certain

qualifying Area contractees such as GASP Central or WAS The engineering

and legal fees associated with obtaining a group Augmentation Plan are

shared among those included in the Plan resulting in a significant savings to

the contractee as compared to an independent filing (Basalt Water

Conservancy District 2006)

Within the Colorado Revised Statutes administration of substitute

water supply plans (SWSPs) falls under CRS 37-92-308 The general

assembly originally intended that approval for all out-of-priority uses of water

involving replacement water be the sole province of the water courts with

the exception of the limited circumstances provided for in subsections (3)

(4) (5) and (7) of this statute and in sectsect 37-80-120 (5) and 37-90-137

(11)(b) Simpson v Bijou Irrigation Co 69 P3d 50 (Colo 2003)(see

Appendix D for Simpson case and historical chronology)

Limitations in this statute also applied to rules adopted by the state

engineer pursuant to the compact rule power granted by sect 37-80-104 as

well as to those adopted pursuant to the water rule power granted by sect 37-

92-501 Simpson v Bijou Irrigation Co 69 P3d 50 (Colo 2003) The CRS

37-92-308 restrictions in the Simpson decision become even more confusing

with regard to issuance of replacement plans and SWSPs under the newly

revised special conditions outlined in sections 3 4 5 and 7 of the statute

(see Appendix F for Colorado Revised Statutes 37-92-308-3457)

4 Statutory Authority of Office of State Engineer Simpson v Bijou

Irrigation Co (2003)

In the Simpson v Bijou case the court held that the State Engineer

had actedwithout statutory authority to promulgate the proposed rules as

written both pursuant to his ldquowater power rulerdquo under section 37-92-501 10

CRS (2002) and his ldquocompact power rulerdquo under section 37-80-104 10

CRS (2002) The proposed rules which allowed the State Engineer without

an augmentation plan application pending in water court to authorize out-of-

priority groundwater depletions requiring ldquoreplacement plansrdquo were

considered in excess of his statutory authority and contrary to law GASP

and the SEO maintained that the 2003 holding in Empire v Moyer and the

repeal of 308(1) (c) did not eliminate the authority of the SEO to approve

SSPs Instead the proposed rules in sections 308(345 and 7) authorized

the SEO to continue to approve SWSPs for pre-1972 wells (all of GASPs

member wells) in the South Platte River Basin The Supreme Court affirmed

the water courts determination that the SEOs authority to approve SWSPs

was strictly restricted to the four narrowly defined situations set forth in the

provisions of 308 Sections 3 4 5 and 7 (Strawn 2004)

After the courts rulings the SEO and GASP looked to the state

legislature to overturn the limitations on the SEOs authority Unfortunately

for GASP the legislative response was in agreement with the judiciary

decision enacting legislation reducing the SEOs authority to grant SWSPs in

the South Platte River Basin

In fact on the same day the Colorado Supreme Court decided the

Simpson case in 2003 upholding the water courts limitation of the SEOs

authority to approve SWSPs the governor signed Senate Bill 03-73 This law

severely limited the SEOs authority to administer replacement water in the

South Platte River Basin (Strawn 2004 Caile 2008) The statute also

mandated that after December 2005 the GASP wells would be completely

curtailed unless the well users supplied proof that they were awaiting

adjudication of an application for an augmentation plan Unfortunately the

new requirements for receiving approval for an SWSP under Senate Bill 03-

73 proved so stringent for the applicant and difficult for the SEO that many

farmers including GASP members could not meet the heightened criteria

and were not granted SWSPs for the 2003 irrigation season

A further blow to GASP occurred when its 2003 SWSP was not renewed

due to failure to acquire enough replacement water In an attempt to

mitigate the limitations of Senate Bill 03-73 imposed on well users operating

under SWSPs the legislature modified the definition of what constitutes a

source of replacement water for augmentation plans under Colorado

Revised Statute 37-92-305 Under the statute a plan for augmentation

provided for additional or alternative sources of replacement water including

water leased on a yearly or less frequent basis to be used in the plan after

the initial decree is entered if the use of said additional or alternative sources

is part of a SWSP approved pursuant to 37-92-308 or if such sources are

decreed for such use (Strawn 2004 Caile 2008) Senate Bill 09-147 also

passed to assuage the deteriorating conditions for users of the lower South

Platte River

Analysis Part I Conflict in the South Platte River Basin GASP decreed augmentation and surface water supply problems

As mentioned previously in 2002 the SEO set forth proposed rules

and regulations (amending the 1972 Rules in the Proposed Amended Rules

and Regulations) in part pertaining to replacement water within the South

Platte River Basin These rules were immediately challenged in court by

decreed appropriators and found to be void in their entirety (Strawn 2004

largely based on the State Engineers self-proclaimed authority to unilaterally

approve replacement plans (such as SWSPsTSSPs) for out-of-priority

groundwater depletions for owners of pre-1972 wells

As outlined in the proposed water power rules CRS37-92-

501(1)(2002) and CRS37-92-308 replacement plans are considered a

means by which undecreed pre-1972 well users can avoid curtailment by the

State Engineer by making up the water shortfall to senior appropriators

replacing the injurious depletions of water they divert from their wells with

water from other legally available sources such as reservoirs storm water

and winter supplies Kuiper v Gould 583 P2d 910 (Colo 1978) Simpson v

Bijou Irrigation Co 69 P3d 50 (Colo 2003)

The terms of the rules made it clear that such replacement plans

were considered temporary in nature subject to an annual review by the

State Engineer and are not subject to Colorados statutory adjudication

procedure however it was determined that the rule was ambiguous as to

when this must occur giving the State Engineer too much leeway in

granting annual approval indefinitely (Appeal from the District Court Water

Division No 1 Case No 02CW108 May 27 2003)

While the effects of unregulated well pumping and tensions between

those with decreed augmentation plans those operating under SWSPs and

the SEO first appeared in the Arkansas River Basin (Fellhauer v People 447

P2d 986 994 (Colo1968) Empire Lodge Homeowners Assn v Moyer 39

P3d 1139 (Colo 2001) the problems became equally applicable to those in

the lower South Platte River region

Analysis Part II Arkansas Court Rulings and a new era for

supplemental planning in the Lower South Platte River Basin

In the Arkansas Revised Rulings of 1974 the purpose of Augmentation

Plans was to make new sources of water available in time place and amount

so that a new junior use could divert without causing injury to senior water

rights This provided for adjudication of Wells if filed before July 1 1972

with priority relating back to the appropriation date or if filed after July 1

1972 priority junior to all rights filed in prior years (Wittie 2010)

The Arkansas River rules provided in part that the State Engineer

could curtail injurious out-of-priority groundwater depletions unless the water

was replaced by (1) a decreed augmentation plan (2) a substitute supply

plan approved by the State Engineer pursuant to section 37-80-120 or (3)

a plan approved by the state and division engineers in accordance with

these Rules Rule 6 granted the State Engineer authority to determine the

adequacy of each source of water proposed for use as augmentation water

Rule 7 provided that the State Engineer could approve a plan to divert

tributary ground water to provide sufficient augmentation water in amount

time and location and that the plan must be reviewed annually by the

State Engineer to ensure that it did not cause injury to seniors (summarized

in Simpson v Bijou 2003)

The Arkansas River conflict emerged in the South Platte River Basin for

four reasons (1) the South Platte River is over-appropriated (2) irrigators

operating under SWSPs share the South Platte with the states largest

municipalities many of whom operate under decreed augmentation plans

(3) all water users had suffered the damaging effects of three consecutive

years of severe drought and (4) the drought highlighted long-standing

differences between those with decreed augmentation plans those operating

under SWSPs and the SEO over how best to manage replacement water

(Strawn 2004) Those Lower South Platte River GASP members with decreed

augmentation plans suffered inequities stemming from the fact that many

GASP members had been operating under temporarily assigned SWSPs for

over three decades

Analysis Part III The impact of HB 03-73 and HB 02-1414 on Supplemental Water Supply Augmentation and Replacement Plans

(Burden of Proof)

SWSP status After the Colorado Supreme Courts rulings in Empire v

Moyer and Simpson v Bijou limitations were placed on the SEOrsquos authority

to grant supplemental water supply plans (SWSPs) in the South Platte River

Basin based largely on the fact that the lower South Platte River decreed

users simply could no longer accommodate those with junior rights operating

under augmentation plans including (SWSPs) previously issued (Strawn

2004) On the same day the Colorado Supreme Court decided the Simpson

case in 2003 upholding the water courts limitation of the SEOs authority to

approve SWSPs under CRS 37-92-308 the governor signed Senate Bill 03-

73 which further limited the SEOs authority to administer replacement water

in the South Platte River Basin (Strawn 2004 Caile 2008)

HB 03-73 also required that after December 2005 the GASP wells

would be completely curtailed unless the well users supplied proof that they

were awaiting adjudication of an application for an augmentation plan

It is important to understand that Substitute Water Supply Plans are

considered only a temporary legal water supply as previously administered

by the State Engineer One condition of the SWSP is that all contractees

must ultimately be covered by a Plan for Augmentation decreed in Water

Court in accordance with Colorado law In addition contracts that do not

qualify for temporary operation under the SWSP must obtain a Water Court

decree for a Plan for Augmentation before they can be augmented under the

Districts program (SEO 2010 Caile 2008)

Unfortunately the new requirements for receiving approval for an

SWSP under Senate Bill 03-73 proved so stringent for the applicant and

difficult for the SEO that many farmers including GASP members could not

meet the heightened criteria and were not granted SWSPs for the 2003

irrigation season A further blow to GASP occurred when its 2003 SWSP was

not renewed due to failure to acquire enough replacement water

The post-drought changes and legislation created chaos for the lower

South Platte River agriculturally based organizations and the Office of the

State Engineer Fortunately for some HB 02-1414 enacted in 2002 allowed

the State Engineer to approve substitute water supply plans (SWSPs) for

limited amounts of time under limited circumstances most notably while an

application for approval of a change of water right or plan for augmentation

is pending in the water court or approval of SWSPs for pre-1972 wells (all of

GASPs member wells) in the South Platte River Basin was required

In spite of the modification of Senate Bill 03-73 the enactment of HB

02-1414 and modifications to Colorado Revised Statutes 37-92-305 dn 37-

92-308 the process stranded several hundred GASP members with no water

for the duration of the 2003 irrigation season Consequently most left GASP

and joined other well user organizations such as the Well Augmentation

Subdistrict of the Central Colorado Water Conservation District who were

organized in a manner that enabled filing for approval of a collective

augmentation plan andor filing for individual approval of augmentation plans

with the Division One Water Court easier in order to keep operating under

SWSPs pursuant to the requirements of Senate Bill 03-73

Augmentation Plan defined An augmentation plan is the functional

equivalent of a substitute water supply plan or replacement plan except

that it has been sanctioned by court decree rendering out-of-priority

diversions no longer susceptible to curtailment by the state engineer

pursuant to sectsect 37-92-501 (1) and 37-92-502 (2)(a) so long as the

replacement water can be supplied to avert injury to senior rights Simpson

v Bijou Irrigation Co 69 P3d 50 (Colo 2003) Additionally it is now a

requirement that augmentation plans document proof of replacement water

supplies

The burden of proof for augmentation ldquopracticesrdquo ranges from the use

of retiming of depletions using augmentation wells and recharge projects

replacement supplies of limited duration or uncertain amount and use of

undecreed replacement supplies to the use of ldquoprojection toolsrdquo used to

quantify and regulate allowable pumping (Caile 2008) This process increases

the burden on State water officials charged with administration of CRS37-

92-308(3-7) and on well users scrambling to fulfill water replacement

obligations Well Augmentation Subdistrict of the Central Colorado Water

Conservancy District v City of Aurora Case Nos 03CW9 amp 03CW177 (2009)

In a vigorous attempt to exercise accountability and flexibility and

make the most of scarce replacement water supplies applicants seeking

approval of augmentation plans are increasingly turning to complex water

management and accounting practices to make the plans work and to meet

the burden of proof in water court litigation Ironically some of the major

augmentation plans that were litigated during that time are currently used to

provide sources of replacement water for the wells that had previously been

shut down (Mullarkey 2005) (WAS v City of Aurora 2009)

Analysis Part IV Enactment of SB 09-147 to off-set South Platte

loss

Though the 1969 Act integrated wells into the priority system through

plans for augmentation it prohibited them from placing a call for water that

might curtail diversions by other water rights Rather than placing a call the

1969 Act requires that well pumping be curtailed if injurious depletions are

not replaced As stated in the SEO administrative guidelines augmentation

and substitute water supply plans (SWSPs) had historically been a way for

junior appropriators to obtain water supplies through terms and conditions

approved by a water court that protect senior water rights from the

depletions caused by the new diversions Typically this involved storing

junior water when in priority as a replacement supply releasing it when a

senior river call came on Replacement water was purchased in the form of

stored waters from federal entities or others or by purchasing senior

irrigation water rights and changing the use of those rights to off-set the

new usersrsquo injury to the stream (SEO 2010)

The replacement water supplied to downstream users by GASP each

year had traditionally been supplied in different forms and from a variety of

sources such as wells reservoirs winter surplus and precipitation While

GASP owned some permanent water supplies the vast majority of its

replacement water had been leased on an annual basis from reservoirs in

the winter to use as replacement supplies in exchange for the water its

members wells pumped during the summer irrigation season

Retiming wells also supplied a good portion of GASPs replacement

water by diverting water for recharge augmentation or replacement to a

stream ditch canal or reservoir then later releasing it for the senior calls

S 03-073 64th Colo Gen Assem 1st Reg Sess (Colo 2003) The

retiming wells theoretically balanced out depletions caused by other wells

impacting the river acting as replacement plans by preventing noticeable

depletion to the stream causing harm to downstream users

In addition to timing wells Senate Bill 09-147 was enacted to further

assist the South Platte users by giving them the opportunity to utilize

existing excess South Platte supplies without injuring senior water rights or

requiring additional transmountain diversions SB 09-147 only applied to

obligations created by pre-2003 well pumping with the maximum potential

use of SB 09-147 water limited to less than 18000 acre feet of post-

pumping depletion augmentation with amounts decreasing annually reaching

near zero after nine years (CCWCD 2010)

Under SB 09-147 quota allotments for well owners could only be

allowed to increase if a user could prove that firm water sources would be

available to meet any future depletion to the river caused by their increased

pumping Colorado Big Thompson (C-BT) water that had already been

transmountain diverted and delivered to the C-BT shareholder was used

temporarily under SWSP plans to help maintain historic return flows in the

South Platte provided the shareholder agreed to put his water share on the

rental market

The effect SB 09-147 had on members of the Well Augmentation

Subdistrict of Central (many of them formerly GASP members) was

significant in that it reduced drought depletions from 2300 AF in 2009 to a

proposed 50 AF by the repeal date of July 1 2018 Well Augmentation

Subdistrict of the Central Colorado Water Conservancy District v City of

Aurora Case Nos 03CW99 amp 03CW177 (2009) Groundwater Appropriators

of the S Platte River Basin v City of Boulder 73 P3d 22 26-77 (Colo

2003)

Although a monumental setback to the agricultural community

dependent on supplemental water supply allocations issued in the lower

South Platte River region the historical Simpson case succeeded in bringing

all the replacement plans operating without a court-approved augmentation

plan under enforcement within the prior appropriation system

Similarly as a result of decisions made in the 2003 Colorado Supreme

Court case of Simpson v Bijou Irrigation Co 69 P3d 50 (Colo 2003)

conjunctive use provisions within the Water Right Determination and

Administration Act of 1969 (the ldquoWater Rights Actrdquo) were revitalized in the

arena of Colorado water resource management to include sustaining

ecological needs and aesthetic and recreational values whose primary

purpose was to capture surplus stream flows and store them underground in

aquifers to be used during periods of inadequate stream flow for

consumptive use and supplement stream flows (Hillhouse 1974 Schlager

1999)

Enforcement of conjunctive use provisions in the 1969 Act were put to

the test and modernized to include new concepts from the Simpson case

such as the retiming of depletions using augmentation wells and recharge

utilization of temporary or undecreed replacement water sources and use of

projections as a term and condition to quantify and regulate allowable

pumping (Caile 2008) for sustainable optimum and region-wide equity of use

(Babcock 2009 Johnson 2008) Simpson v Cotton Creek Circle LLC case

)

Environmental Consequences and Conjunctive Use

Evapotranspiration In the words of Thomas Conrad (2008) ldquothe

effects of Climate Change on water availability are much less predictable

than the effects on temperature and these effects are not limited to just

changes in rainfall patterns changes in evaporation and changes in

snowmelt According to Ken Knox water resources engineer at URS Corp

and former Colorado Chief Deputy State Engineer ldquothe largest driver of

decreased water availability in Colorado (and the rest of the arid West) is not

changes in precipitation snowmelt or evaporation but a longer growing

season due to warmingrdquo With longer growing seasons posing one of many

arid land management risks Knox warns that ldquofarmers many of whom hold

very senior water rights take advantage of a longer growing season by

planting more crops They then irrigate for an extended season using more

of the finite water supply for longer periodsrdquo

Knox elaborates further on water inefficiencies that occur during

evapotranspiration phases in crop management ldquoIit is a common practice to

calculate consumptive use of water by crops from the evapotranspiration

process then providing an alternative for some in the agricultural

community to change a water right from irrigation practices to reliance on

municipal water supplies using the evapotranspiration factor as a bargaining

chip Knox warns that ldquoin theory changing the water right and usage does

not conserve water because the same unit used to grow a crop is now

usedconsumed for another purpose (Conrad 2008 Knox conversation 2010

see Appendix for evapotranspiration credit)rdquo

Conjunctive Use Management

Many believed the solution to the well problem was the optimum

utilization of the states water resources through conjunctive use In this

manner surface water and tributary groundwater were treated equally

resulting in an increase andor acknowledgement of all the water available in

the system Proponents of conjunctive use believed this enactment would

prevent injury to existing surface users because the prior appropriation

legislation required all tributary groundwater wells be brought within the

system for regulatory purposes to be evaluated relative to existing senior

surface rights The provisions required the complete integration or

ldquoconjunctive userdquo of surface and groundwater uses in all of Colorados river

basins by creating two administrative mechanisms augmentation plans and

substitute water supply plans (SWSPs) (MacDonnell 1988)

Conjunctive use is considered beneficial in that it increases the amount

of water within the system while allowing appropriators to use wells instead

of and in conjunction with surface diversions (MacDonnell 1988) In

response to the conjunctive use doctrine widespread implementation of well

water pumping was established providing a more efficient less wasteful

means of appropriating water based on the premise that when water is

pumped through a well only the amount to be diverted is removed from the

aquifer compared to evapotranspiration losses suffered when transported

via surface stream flow (MacDonnell 1988 Strawn 2004)

Conjunctive use not only satisfies the aesthetic predisposition of an

urban community but is agriculturally beneficial in that it increases the

amount of water within the system while allowing appropriators to use wells

instead of and in conjunction with surface diversions Wells also provide a

number of advantages to the irrigator minimizing waste and exposure to

evapotranspiration This is best described by William Hillhouse (1974)

ldquoWhile the cost of pumping may exceed the costs of delivering surface water

to the farm the water is available at the flip of a switch The curse of the

unreliable supply is largely eliminated the water is there when the farmer

needs it not when the ditch is able to divert under what may be a marginal

surface priority Transportation losses are minimized because the water is

diverted at or near the point of application and wells are compatible with

efficient sprinkler systemsrdquo

Supply and Water Demand Management

Population projections for the Western Slope Colorado River Basin

from 2000 to 2030 are estimated to increase by 99 while increases of

65 are estimated along the South Platte River Basin (DeNitale-SWRI

2005) In the 2010 report entitled ldquoColorado Review Water Management

and Land Use Planning Integrationrdquo (Kathlene 2010) the concept of water

demand management is recognized as a method to offset the current trend

exercised by the Federal government to reduce its role in building water

supply infrastructure leaving the state and its localities with the challenge of

supplying sustainable water programs (Brooks 2006) The report suggests

using a combination of developing new water supplies and reallocating

existing supplies closely integrated with multi-use demand management

objectives as outlined below (CWCB 2009 Kathlene 2010)

Water demand management is broadly applicable in that it integrates

technical economic administrative financial and social methods that

address any one or more of the following five issues (Brooks 2006)

1 Reduce the quantity or quality of water required to accomplish a

specific task 2 Adjust the nature of the task or the way it is undertaken so that it

can be accomplished with less water or with lower quality water 3 Reduce the loss in quantity or quality of water as it flows from

source through use to disposal 4 Shift the timing of the use from peak to off-peak periods

5 Increase the ability of the water system to continue to serve society during times when water is in short supply

Another strategy that may be useful in the supply-demand scheme is

implementation of growth moratoria to minimize the effects of urban sprawl

This approach not only enhances property values but increases community

responsibility and cohesiveness creating capacity building opportunities while

minimizing the expenditure of limited resources (Ragsdale 2002 Wolfe

2007)

Reducing Inefficiencies

It comes as no surprise that water availability and quality are closely

linked to water conservation and energy management programs making

surviving in the semi-arid climate of Colorado which is characterized by less

than 15 inches of annual rainfall particularly challenging Reducing

individual carbon footprints in the home reduces energy consumption and

hydroelectricity demands significantly (Nature Conservancy 2010) Energy

consumption in the home can be reduced by replacing old appliances with

more energy efficiently rated ones weatherizing windows and doors

insulating walls and ceilings using solar or radiant heat and in some cases

retrofitting or reconstructing a homersquos building envelope from the inside out

(NARs Green Resource Council 2010)

On the community scale growth and urban management water

metering recycling xeriscaping evapotranspiration incentives energy

credits and implementing stricter appropriation and permitting standards in

the agricultural industrial and municipal sectors are critical to maintaining

water as a renewable resource (Kathlene 2010 Kassen 2003 Sower-Hall

1997) Another water conservation alternative worthy of investigation is the

generation of water during chemical catalysis processes used in the

production of alternative fuels and fuel cells (methanol methane and

reverse water-gas shift McMillen 1998 McMillen 1999 Zubrin 1998)

Improving Environmental Quality in the South Platte River Basin

What happens when senior upstream water appropriators have a duty

to provide return flows pursuant to an augmentation plan when either their

use alters the return flow quality or they provide return flows by relying on

a replacement or separate source whose quality differs from that of the

original supply Fortunately their activities are governed by the two

Colorado statutes governing the quality of water the senior appropriator may

expect in any substitution (Sower-Hall 1997) The first is CRS 37-92-

305(5) mandating that substituted water be of a quality and quantity so as

to meet the requirements for which the water of the senior appropriator

normally uses and that such substituted water shall be accepted by the

senior appropriator in substitution for water derived by the exercise of his

decreed rights Similarly CRS 37-80-120 states that the ldquosubstituted

water should be of quality and quantity so as to meet requirements of use

normally put by the senior rightrdquo

Alarmingly stream flows statewide during the 2002 drought were the

lowest in over 100 years with tree ring data suggesting flows were probably

the lowest in 300 to 500 years (Kassen 2003) As demonstrated in the case

of PUD No 1 of Jefferson County v Washington State Department of

Ecology 849 P2d 646650 (Wash 1993) violations of the Clean Water Act

section 303(c) can occur under situations in which water quality degradation

occurs as a result of manipulated or compromised stream flows (Pifher

1996)

Though water quality should be recognized as a vested right under

the 1969 Act prevention of injury provision the lower South Platte has

historically been subjected to a multitude of environmental stressors (see

Appendix B for detailed summary of environmental problems related to Sand

Creek Superfund wastewater effluent and pesticide contamination) The

Colorado Water Quality Control Commission is responsible for promulgating

Federal requirements set forth by the EPA in the Clean Water Safe Drinking

Water Toxic Substances Control and Federal Insecticide Fungicide and

Rodenticide Acts by regulating the release of toxic substances permitting

and registering pesticides issuing NPDES permits for point source

discharges and monitoring well water quality and public drinking water

insuring the availability not only of safe drinking water but of downstream

protection for riparian and aquatic life along the entire length of the Platte

River from its Colorado and Wyoming origins to its convergence with the

Missouri and Mississippi Rivers (Bruce 1995 CDPHE 2010 Dennehy 1991

Litke 1996 Kimbrough 1997 McMahon 1996 USGS 1995)

Statewide Conservation Programs and Statutes

ldquoThe best way to change a norm is through education (Hope Babcock 2009)rdquo

Impressively efforts aimed at satisfying Coloradorsquos Water for the 21st

Century Act initiatives are prevailing amongst state and federal agencies

professionals private interest groups and stakeholders who are committed

to problem solving in a more integrated fashion than ever before The

formation of the Colorado Interbasin Compact Committee (IBCC) has

resulted in the creation of nine statewide water policy roundtables

exhaustive monitoring and evaluation of basin by basin needs assessments

and ongoing research conducted as part of the Statewide Water Supply

Initiative (CWCB 2004) Several statewide programs and statutes dedicated

to water conservation and resource management include (Kathlene 2010)

CRS 36-60-115 Precipitation harvesting pilot projects tested in mixed-use developments collecting precipitation from rooftops and

impermeable surfaces for nonpotable uses

Water Conservation in State Landscaping CRS 37-96-101 to 103 1989 amended 1991 99

Water Metering Act CRS 37-97-101 to 37-97-103 1990 2004 Homeowner Association Restrictions CRS 37-60-126(11)(a)2003

2005

Water conservation plans CRS37-60-124 and 37-60-126 1991-2004

Created the Office of Water Conservation and Drought Planning under the CWCB to promote water conservation and drought mitigation

planning EPA ldquoCommunity-Based Environmental Protection (CBEP)rdquo initiated by

the Environmental Protection Agency Office of Policy Economics and Innovation demonstrated the value of invigorating cultural and

community cohesiveness toward an integrated purpose of preservation In the 1999 EPA pilot studies the community-based

environmental protection program (CBEP) modeled and tested common community attributes it deemed inherent to success of the

project Some of these included a focus on geographic area collaboration among a wide range of stakeholders assessments that

cut across environmental media to support integrated decision making integration of environmental economic and social objectives

integration of regulatory and non-regulatory tools and approaches and

integration of adaptive management approaches driven by ongoing monitoring and adaptation (EPA 1999)

The Smart Growth concept (Kathlene 2010 outlined in Appendix G) beneficial because it encourages a municipality to better prioritize the

preservation of community character protect open space plan for water and energy efficient development in parks recreational facilities

and subdivision developments (Jackson 2005 Pifher 1995) by minimizing unnecessary waste

Conclusion and Position Recommendation

The study of Colorado water management spans many disciplines

ranging from federal state local law and Colorado Supreme Court decisions

to resource conservation planning and issues of multi-use equanimity It is

a dynamic and complex process requiring constant vigilance and revision to

address ongoing problems associated with supply and demand Water

demand management techniques introduced by the private sector should be

coordinated with efforts by the State Engineerrsquos Office and district water

courts to ensure optimum and sustainable water usage throughout the state

From the perspective of the Plaintiff Bijou Irrigation Company in the

Colorado Supreme Courtrsquos ruling in Simpson v Bijou I agree with the

Courtrsquos decision remanding the authority of the State Engineer Hal

Simpson in administering and issuing supplemental and replacement water

supply plans without annual review or enforcement of the temporary nature

of their issuance as outlined in CRS 37-92-308 I support this decision on

the grounds that redefining supplemental and replacement water policies

their issuance and enforcement provides for stricter adherence to the

process of requiring concurrent application to the district water courts for

decreed augmentation plans for those operating under the temporary

restrictions of SWSPs The Simpson case resulted in enactment of Senate

Bills 03-73 and 09-147 influenced by House Bill 02-1414 with modifications

to CRS 37-92-305 and CRS 37-92-308 restricting the authority of the

SEO to further administer SWSPs except those based solely on provisions

stated in CRS 37-92-308 sections 3 4 5 and 7

I further encourage invigoration of the conjunctive use provisions in

the 1969 Water Rights and Determination Act promulgating culturally and

environmentally sound conjunctive multi-use management practices

statewide reiterating the gravity of misappropriating a precious resource in

a semi-arid environment burdened by the prospect of sustaining unlimited

growth

References

Babcock Hope 2009 Assuming personal responsibility for improving the

environment Moving toward a new environmental norm 33 Harv Envtl L Rev 117 2009

Basalt Water Conservancy District 2006 Augmentation plans httpwwwbwcdorgserviceshtml

BLM 1984 Water rights policy United States Department of the Interior Bureau of Land Management Manual Transmittal Sheet

7250 - Water Rights 3191984 httpwwwblmgovnstcWaterLawsappsystemshtml

Brooks DavidB 2006 An operational definition of water demand management Water Resources Development 22 (4) 521-528

Brooks DavidB Lorra Thompson Lamia El Fattal 2007 Water Demand Management In The Middle East And North Africa Observations From

The IDRC Forums And Lessons For The Future Water International

32(2)193-204 (AN 28718769) Bruce BW 1995 Denverrsquos urban ground-water quality Nutrients

pesticides and volatile organic compounds US Geological Survey Fact Sheet FS-106-95

Caile William H 2008 New administration issues in augmentation plans In Water Administration Colorado Bar Association CLE April 4 2008

wwwwesternwaterlawcomarticlesNewAdminIssuesAugPlanshtml Central Colorado Water Conservation District 2010 Effect of SB 09-147 on

the Well Augmentation Subdistrict members httpwwwccwcdorg Colorado Division of Water Resources 2010 Water administration

httpwaterstatecouswateradminwateradminasp

Colorado Water News 2010 Water right basics

httpwwwcoloradowaternewscomWaterRightBasicswaterrightbasicshtml

Conrad Thomas 2008 Some thoughts on water electricity and climate

change August 2008 article for Alt Energy Stocks httpwwwaltenergystockscomarchives200808some_thoughts_o

n_water_electricity_and_climate_changehtml Cyran John J Edward R Kowalski Linda J Bassi 2000 City of Central

Decision victory for Colorados instream flow program Colorados Prior Appropriation System and Colorado 10 U Denv Water L Rev

259-286 Dennehy Kevin F 1991 National Water-Quality Assessment Programmdash

South Platte River Basin US Geological Survey Open-File Report 91-155

Dunford DS 2003 Effects of managed groundwater recharge on the hydrology and water quality of the South Platte River Basin Colorado

AES Project 2002-2003

httpwwwcolostateeduDeptsAESprojs732htm EPA 1999 Evaluation of CBEP community place-based environmental

protection programs Office of Policy Economics and Innovation (1807T) Washington DC EPA publication 100-R-02-004

httpwwwepagovCARElibraryevaluationpdf EPA 2004 Final report A comparative institutional analysis of conjunctive

management practices among three southwestern states at govncer_abstractDetailabstract615reportF (last visited Jan 30

2004) South Platte Well Regulation Timeline Hillhouse William 1974 Integrating Ground and Surface Water Use in an

Appropriation State 20 Ann Rocky Mtn Min L Inst 691 696 (Footnote in Alamosa v Gould 1983)

Hobbs Justice Gregory Jr 1997 Colorado Water Law An historical overview 1 Univ Denv Water Law Review 124-25

Hobbs Gregory 2004 Citizenrsquos Guide to Colorado Water Law 2nd Edition

Colorado Foundation for Water Education 1-33 Hobbs Justice Gregory Jr 2004 Groundwater depletion and over-

exploitation in the Denver Basin Bedrock Aquifers Geological Society of America Abstracts with Programs 36(5) 104

Johnson Peter 2008 Third Act in Colorado Water Law The Colorado Supreme Court Affirms the Concept of Sustainable Optimum Use in

Simpson v Cotton Creek Circle LLC12 U Denv Water L Rev 241-277

Kathlene L L Jewlya A Greenwade W Sullivan and Q Lung 2010 Colorado Review Water management and land use planning

integration Center for Systems Integration httpwwwcsi-policyorg

Kassen Melinda 2003 Symposium Statutory expansion of state agenciesrsquo

authority to administer and develop water resources in response to Coloradorsquos drought 7 U Denv Water L Rev 47

Knox Ken 2010 Conversation by email (5-26-10)

Litke DW 1995 Nutrients in the South Platte River 1993-95 US Geological Survey Fact Sheet FS-105-95

Kimbrough RA 1995 Are streams in agricultural and urban areas contaminated by pesticides US Geological Survey Fact Sheet FS-

104-95 MacDonnell Lawrence J 1986 Colorados Law of Underground Water A

look at the South Platte Basin and beyond 59 Univ Colo L Rev 579 604

MacDonnell Lawrence J 1988 Tributary groundwater development into the prior appropriation system The South Platte experience Colorado

State University CSU Completion Report No 148 httpwwwcwicolostateedupublicationscr148pdf

McMahon PB Litke DW Paschal JE and Dennehy KF 1994 Ground

water as a source of nutrients and atrazine to streams in the South Platte River Basin Water Resources Bulletin 30(3) 521-530

McMahon PB Lull KJ Dennehy KF and Collins JA 1995 Quantity and quality of groundwater discharge to the South Platte River Denver

to Fort Lupton Colorado August 1992 through July 1993 US Geological Survey Water-Resources Investigations Rpt 95-4110 71

McMillen Keli R Thomas R Meyer 1998 The Case for a Mars Base ISRU Refinery In the Proceedings of the Founding Convention of the Mars

Society San Diego CA Univelt Press volume 1 Part II 699-707 McMillen Keli R Thomas R Meyer and Benton C Clark 1999 Methanol as

a dual-use fuel for Earth and Mars In The Case for Mars V ed PJ Boston AAS Science and Technology Series San Diego CA Univelt

Press volume 97 Mullarkey Mary J and Gerald Marroney May 2005 Business in Colorado

water courts Media Alert Colorado Judicial Branch Denver CO

httpwwwcourtsstatecous

National Association of Realtors 2010 NARs Green Resource Council

httpwwwGreenREsourceCouncilorg Nature Conservancy The 2010 Carbon footprint calculator

httpwwwnatureorginitiativesclimatechangecalculator

Pifher Mark T 1995 Water watersheds and the West The impact of the

Jefferson County Decision Environmental Lawyer 2( 1) 1-36 Purdue staff 2010 Know your watershed Ground water and surface water

understanding the interaction httpwwwcticpurdueeduKYWBrochuresGroundSurfacehtml

Ragsdale John W 2002 Alternative communities for the High Plains An exploratory essay on holistic responses to issues of environment

economy and society Urban Lawyer 34(1)73-79 Schlager Edella Blomquist William 1999 A Comparative Institutional

Analysis of Conjunctive Management Practices Among Three

Southwestern States EPA Grant Number R824781 Shimmin Mike 2002 Recent Developments Concerning State Engineer

Rulemaking Authority for the South Platte River Basin 6 U Denv Water L Rev 549-556

Simpson Hal 2006 History of the South Platte River Colorado Department of Natural Resources Office of the State Engineer publications

httpwaterstatecouspubspresentationshsimpson_history_090606pdf

Sower-Hall Carmen Holly I Holder 1997 Water Quality Issues in Augmentation Plans and Exchanges 1 U Denv Water L Rev 96 96-

108

Strawn Lain 2004 The last GASP The conflict over management of

replacement water in the South Platte River Basin University of Colorado Law Review Inc 75 U Colo L Rev 597-632

Sullivan TF CL Bell ML Miller et al 2007 Environmental Handbook 19th Edition Government Institutes Scarecrow Press NY p 299-332

Water Court Committee Colorado Supreme Court 2000 Non-Attorneyrsquos Guidebook to Colorado water courts

httpwwwcourtsstatecoususerfilesFileSelf_HelpNon-Attorneys_Guidebook_to_Colorado_Water_Courts_Finalpdf

Wittie Steve 2010 httpwwwagrocomWaterResourcesSteveWittiepdf Wolfe Sarah and DavidB Brooks 2003 Water scarcity An alternative view

and its implications for policy and capacity building Natural Resources Forum 27(2)99-107v

Wood Tom J 1984 Tunnel vision An analysis of river call data in the South Platte River basin Blatchley Associates Publisher

Zubrin Robert KR McMillen T R Meyer 1998 Mars in-situ resource

utilization research MIRUR the general analysis of the reverse water-gas shift reaction and scaling relationships for Mars ISSP systems

Report to NASA JSC ACRP NCC9-45

Court Opinions and Rulings (see Appendices for comprehensive list)

Colorado water courts Water resume archives Water District One

httpwwwcourtsstatecousCourtsWaterResume_ArchivecfmWater_Di

vision_ID1

Opinions

httpwwwcourtsstatecousCourtsSupreme_CourtCase_Announcements

Indexcfm

Cases

Alamosa-La Jara Water Users Prot Assn v Gould 674 P2d 914 (Colo 1983)

httpwaterstatecouswateradminSanLuisValleyAlamosaVsGouldPDF

City amp County of Denver v Fulton Irrigating Ditch Co 506 P2d 144 (Colo

1972)

City amp County of Denver By amp Through Its Bd of Water Commrs v Consolidated Ditches Co of Dist No 2 807 P2d 23 (Colo 1991)

City of Thornton v Bijou 926 P2d 1 (1996)

City of Thornton v City amp County of Denver 44 P3d 1019 (Colo 2002)

City of Aurora v State Engineer 105 P3d 595 612-14 (Colo 2005)

Coffin v Left Hand Ditch Co 6 Colo 443 (1882)

Fellhauer v People 447 P2d 986 (Colo 1968)

Fort Morgan Reservoir amp Irrigation Co v Groundwater Appropriators of S Platte River Basin Inc 85 P3d 536 (Colo 2004)

Groundwater Appropriators of the S Platte River Basin v City of Boulder 73

P3d 22 26-77 (Colo 2003)

Irwin v Phillips 5 Cal 140 (1855)

Kuiper v Atchison T amp SF Ry 195 Colo 557 581 P2d 293 (1978) Water rule power

Kuiper v Gould 583 P2d 910 (Colo 1978) Water rule power PUD No 1 of Jefferson County v Washington State Department of Ecology

849 P2d 646650 (Wash 1993)

North Sterling v Simpson (2005) One-fill Rule (FINAL decision of the Colo

Supreme Court- Ken Knox presiding as acting State Engineer Division 1) The complaint as filed asserted four claims for relief (1) unlawful imposition

of a storage season by the Engineers (2) res judicata and collateral estoppel (3) unconstitutional taking of property and (4) violation of Due

Process There are several circumstances that may delay diversions by the North Sterling for days or even months after the lowest gauge height is

recorded for storage in North Sterling Reservoir

Simpson v Bijou Irrigation Co 69 P3d 50 (Colo 2003)

Well Augmentation Subdistrict of the Central Colorado Water Conservancy

District v City of Aurora Case Nos 03CW99 amp 03CW177 (2009) Oral argument Whether the court erred in ruling that sect37-92-305 CRS

requires the Well Augmentation Subdistrict of the Central Colorado Water Conservancy District (ldquoWASrdquo) to replace depletions from well pumping that

occurred prior to WASrsquo augmentation plan application

Wilderness Socy v Robertson 824 FSupp 947 (D Mont 1993)

Commission oversees strict issues of water quality Each of these entities is

governed by two Colorado statutes that play an integral role in preserving

water quality CRS 37-92-305 and CRS 37-80-120 (Sower-Hall 1997)

On the Federal level water quality and potential degradation resulting

from over-use practices are governed by the Clean Water Act (CWA)

Sections 301 and 303 33 USC S 1311(a) and 40 CFR S 1222 The

Wallop Amendment of 1977 in CWA section 101(g) urges cooperation

within state and local agencies to develop comprehensive solutions to

prevent reduce and eliminate pollution in concert with programs for

managing water resources 33 USC sect 1251(g)(1988)(sponsored by

Senator Wallop of Wyoming and Senator Hart of Colorado 123 Congr Rec

39 211 see Appendix B)(Pifher 1995 Strawn 2004 Sullivan 2007)

Colorado prides itself on being proactive in the arena of interagency

cooperative resource management

Topics to be evaluated in the 2004 Strawn study are the primary and

secondary (senior and junior water rights) water allocation methods utilized

pre- and post-2002 Colorado drought with particular emphasis placed on

problems associated with water augmentation and replacement practices

Court decisions resulting from the Simpson v Bijou (2003) case are

summarized to provide a historical backdrop for Colorado water law by

challenging the provisions of the Colorado Doctrine and the administrative

role of the Office of State Engineer (SEO) (Shimmin 2002) Analyzed from


















Background












69 P3d 50 67 (Colo 2003)










XVI 5 (1876)




































302 305 306 501 502)











1988 Strawn 2004)





















2008)










































River







Engineer (SEO)















104 (2002)




















557 581 P2d 293 (1978)






















02SA377(Colo 2002)


















































































Platte River






























































over three decades


(Burden of Proof)























































supplies



















loss












































rental market








2003)















1999)








)






















































































2007)












































1996)

































2005











































growth

References








































































108















vision_ID1

Opinions


Indexcfm

Cases




1972)









P3d 22 26-77 (Colo 2003)




849 P2d 646650 (Wash 1993)





























Background












69 P3d 50 67 (Colo 2003)










XVI 5 (1876)




































302 305 306 501 502)











1988 Strawn 2004)





















2008)










































River







Engineer (SEO)















104 (2002)




















557 581 P2d 293 (1978)






















02SA377(Colo 2002)


















































































Platte River






























































over three decades


(Burden of Proof)























































supplies



















loss












































rental market








2003)















1999)








)






















































































2007)












































1996)

































2005











































growth

References








































































108















vision_ID1

Opinions


Indexcfm

Cases




1972)









P3d 22 26-77 (Colo 2003)




849 P2d 646650 (Wash 1993)


















69 P3d 50 67 (Colo 2003)










XVI 5 (1876)




































302 305 306 501 502)











1988 Strawn 2004)





















2008)










































River







Engineer (SEO)















104 (2002)




















557 581 P2d 293 (1978)






















02SA377(Colo 2002)


















































































Platte River






























































over three decades


(Burden of Proof)























































supplies



















loss












































rental market








2003)















1999)








)






















































































2007)












































1996)

































2005











































growth

References








































































108















vision_ID1

Opinions


Indexcfm

Cases




1972)









P3d 22 26-77 (Colo 2003)




849 P2d 646650 (Wash 1993)










































302 305 306 501 502)











1988 Strawn 2004)





















2008)










































River







Engineer (SEO)















104 (2002)




















557 581 P2d 293 (1978)






















02SA377(Colo 2002)


















































































Platte River






























































over three decades


(Burden of Proof)























































supplies



















loss












































rental market








2003)















1999)








)






















































































2007)












































1996)

































2005











































growth

References








































































108















vision_ID1

Opinions


Indexcfm

Cases




1972)









P3d 22 26-77 (Colo 2003)




849 P2d 646650 (Wash 1993)






























2008)










































River







Engineer (SEO)















104 (2002)




















557 581 P2d 293 (1978)






















02SA377(Colo 2002)


















































































Platte River






























































over three decades


(Burden of Proof)























































supplies



















loss












































rental market








2003)















1999)








)






















































































2007)












































1996)

































2005











































growth

References








































































108















vision_ID1

Opinions


Indexcfm

Cases




1972)









P3d 22 26-77 (Colo 2003)




849 P2d 646650 (Wash 1993)



















































River







Engineer (SEO)















104 (2002)




















557 581 P2d 293 (1978)






















02SA377(Colo 2002)


















































































Platte River






























































over three decades


(Burden of Proof)























































supplies



















loss












































rental market








2003)















1999)








)






















































































2007)












































1996)

































2005











































growth

References








































































108















vision_ID1

Opinions


Indexcfm

Cases




1972)









P3d 22 26-77 (Colo 2003)




849 P2d 646650 (Wash 1993)















Engineer (SEO)















104 (2002)




















557 581 P2d 293 (1978)






















02SA377(Colo 2002)


















































































Platte River






























































over three decades


(Burden of Proof)























































supplies



















loss












































rental market








2003)















1999)








)






















































































2007)












































1996)

































2005











































growth

References








































































108















vision_ID1

Opinions


Indexcfm

Cases




1972)









P3d 22 26-77 (Colo 2003)




849 P2d 646650 (Wash 1993)





























557 581 P2d 293 (1978)






















02SA377(Colo 2002)


















































































Platte River






























































over three decades


(Burden of Proof)























































supplies



















loss












































rental market








2003)















1999)








)






















































































2007)












































1996)

































2005











































growth

References








































































108















vision_ID1

Opinions


Indexcfm

Cases




1972)









P3d 22 26-77 (Colo 2003)




849 P2d 646650 (Wash 1993)





























02SA377(Colo 2002)


















































































Platte River






























































over three decades


(Burden of Proof)























































supplies



















loss












































rental market








2003)















1999)








)






















































































2007)












































1996)

































2005











































growth

References








































































108















vision_ID1

Opinions


Indexcfm

Cases




1972)









P3d 22 26-77 (Colo 2003)




849 P2d 646650 (Wash 1993)

























































































Platte River






























































over three decades


(Burden of Proof)























































supplies



















loss












































rental market








2003)















1999)








)






















































































2007)












































1996)

































2005











































growth

References








































































108















vision_ID1

Opinions


Indexcfm

Cases




1972)









P3d 22 26-77 (Colo 2003)




849 P2d 646650 (Wash 1993)
































































over three decades


(Burden of Proof)























































supplies



















loss












































rental market








2003)















1999)








)






















































































2007)












































1996)

































2005











































growth

References








































































108















vision_ID1

Opinions


Indexcfm

Cases




1972)









P3d 22 26-77 (Colo 2003)




849 P2d 646650 (Wash 1993)
























































supplies



















loss












































rental market








2003)















1999)








)






















































































2007)












































1996)

































2005











































growth

References








































































108















vision_ID1

Opinions


Indexcfm

Cases




1972)









P3d 22 26-77 (Colo 2003)




849 P2d 646650 (Wash 1993)













loss












































rental market








2003)















1999)








)






















































































2007)












































1996)

































2005











































growth

References








































































108















vision_ID1

Opinions


Indexcfm

Cases




1972)









P3d 22 26-77 (Colo 2003)




849 P2d 646650 (Wash 1993)


































rental market








2003)















1999)








)






















































































2007)












































1996)

































2005











































growth

References








































































108















vision_ID1

Opinions


Indexcfm

Cases




1972)









P3d 22 26-77 (Colo 2003)




849 P2d 646650 (Wash 1993)















1999)








)






















































































2007)












































1996)

































2005











































growth

References








































































108















vision_ID1

Opinions


Indexcfm

Cases




1972)









P3d 22 26-77 (Colo 2003)




849 P2d 646650 (Wash 1993)























































































2007)












































1996)

































2005











































growth

References








































































108















vision_ID1

Opinions


Indexcfm

Cases




1972)









P3d 22 26-77 (Colo 2003)




849 P2d 646650 (Wash 1993)













































1996)

































2005











































growth

References








































































108















vision_ID1

Opinions


Indexcfm

Cases




1972)









P3d 22 26-77 (Colo 2003)




849 P2d 646650 (Wash 1993)


































2005











































growth

References








































































108















vision_ID1

Opinions


Indexcfm

Cases




1972)









P3d 22 26-77 (Colo 2003)




849 P2d 646650 (Wash 1993)






















































growth

References








































































108















vision_ID1

Opinions


Indexcfm

Cases




1972)









P3d 22 26-77 (Colo 2003)




849 P2d 646650 (Wash 1993)












References








































































108















vision_ID1

Opinions


Indexcfm

Cases




1972)









P3d 22 26-77 (Colo 2003)




849 P2d 646650 (Wash 1993)




























































108















vision_ID1

Opinions


Indexcfm

Cases




1972)









P3d 22 26-77 (Colo 2003)




849 P2d 646650 (Wash 1993)


























vision_ID1

Opinions


Indexcfm

Cases




1972)









P3d 22 26-77 (Colo 2003)




849 P2d 646650 (Wash 1993)












849 P2d 646650 (Wash 1993)










