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.
In 1991, House Bill 91-1154 passed the Colorado Water Conservation
Act requiring all water providers with annual demands of 2,000 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: C.R.S. 37-92-305 and C.R.S. 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 U.S.C. S 1311(a) and 40 C.F.R. S 122.2. 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 U.S.C. § 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 SEO’s issuance of supplemental water supply plans pursuant to C.R.S.
37-92-308. Simpson v. Bijou Irrigation Co., 69 P.3d 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 Court’s decision in the Simpson v. Bijou
Irrigation (Colo. 2003) case.
1. Prior Appropriation: Surface and tributary groundwater
allocation and the case of Fellhauer v. People (Colo.1968)
As a result of the 1923 South Platte River Compact (C.R.S. 37-65-
101), principal statutes of the water right adjudication process in the “Water
Rights Determination and Administration Act of 1969” (the “Water Rights
Act” C.R.S. §§37-92-101 through -602; Water Court Committee 2000), and
the Colorado Ground Water Management Act, §§ 37-90-101 through -143,
C.R.S. (the “Ground Water Act”), 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. C.R.S. § 37-92-502. Simpson v. Bijou,
69 P.3d 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
“designated ground water.” 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. C.R.S. 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 user's 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 Colorado's 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 “well problem”. It wasn’t 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 (C.R.S. 37-92-301,
302, 305, 306, 501, 502).
One example of this problem is exemplified in the case of Fellhauer v.
People, 447 P.2d 986, 994 (Colo.1968), 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 “conjunctive use,” of surface and
groundwater uses in all of Colorado's 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 Colorado's water resources in accordance with the
objectives of the 1969 Act. Fellhauer v. People, 447 P.2d 986, 994
(Colo.1968)(MacDonnell 1988). And though the 1969 Act defined an
augmentation plan as a “detailed program temporary or perpetual in
duration, to increase the supply of water available for beneficial use,” the
plan’s 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
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
Homeowner's Ass'n v. Moyer, 39 P.3d 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 court's decree dismissed Empire's claims
against the Moyers, issuing an injunction against Empire's out-of-priority
diversions. The court observed that the SEO's 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 court's ability to protect senior user's
vested water rights, the water court was justified in taking steps to return
control of the state's 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 Empire's 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 court's
ruling and held in pertinent part that (1) Empire's out-of-priority diversions
required a decreed augmentation plan that authorized such diversion; (2)
the water court did not abuse its discretion in enjoining Empire's 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 SEO's 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
3. Supplemental Water Management and C.R.S. 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
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 SEO’s 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 Engineer’s 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 C.R.S.
37-92-501(1)(2002), and the compact power rule set forth in C.R.S. 37-80-
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 “temporary substitute supply plans” (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 (“Central”) (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 C.R.S.37-92-501(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. & S.F. Ry., 195 Colo.
557, 581 P.2d 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 state’s 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 P.3d 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 “temporary issue” 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. (“GASP”),
claimed that specific statutory directives conferred upon the State Engineer
the authority to make rules approving temporary “replacement plans” as
provided for in the 2002 proposed rules. Simpson v. Bijou Irrigation Co.,No.
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 C.R.S. 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 §§ 37-80-120 (5) and 37-90-137
(11)(b). Simpson v. Bijou Irrigation Co., 69 P.3d 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 § 37-80-104, as
well as to those adopted pursuant to the water rule power granted by § 37-
92-501. Simpson v. Bijou Irrigation Co., 69 P.3d 50 (Colo. 2003). The C.R.S.
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 37-92-308-3,4,5,7).
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 “water power rule” under section 37-92-501, 10
C.R.S. (2002), and his “compact power rule” under section 37-80-104, 10
C.R.S. (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 “replacement plans,” 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(3,4,5 and 7) authorized
the SEO to continue to approve SWSPs for pre-1972 wells (all of GASP's
member wells) in the South Platte River Basin. The Supreme Court affirmed
the water court's determination that the SEO's 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 SEO's authority. Unfortunately
for GASP, the legislative response was in agreement with the judiciary
decision enacting legislation reducing the SEO's 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 court's limitation of the SEO's
authority to approve SWSPs; the governor signed Senate Bill 03-73. This law
severely limited the SEO's 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
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 Engineer's self-proclaimed authority to unilaterally
approve "replacement plans" (such as SWSPs/TSSPs) for out-of-priority
groundwater depletions for owners of pre-1972 wells.
As outlined in the proposed water power rules C.R.S.37-92-
501(1)(2002) and C.R.S.37-92-308, "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 P.2d 910 (Colo. 1978). Simpson v.
Bijou Irrigation Co., 69 P.3d 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 Colorado's 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
P.2d 986, 994 (Colo.1968); Empire Lodge Homeowner's Ass'n v. Moyer, 39
P.3d 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 state's 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 SEO’s 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 court's limitation of the SEO's authority to
approve SWSPs under C.R.S. 37-92-308, the governor signed Senate Bill 03-
73 which further limited the SEO's 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
District's 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
GASP's 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 and/or 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 §§ 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 P.3d 50 (Colo. 2003). Additionally, it is now a
requirement that augmentation plans document proof of replacement water
The burden of proof for augmentation “practices” 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 “projection tools” used to
quantify and regulate allowable pumping (Caile 2008). This process increases
the burden on State water officials charged with administration of C.R.S.37-
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 & 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
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 users’ 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 GASP's 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 18,000 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
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 & 03CW177 (2009). Groundwater Appropriators
of the S. Platte River Basin v. City of Boulder, 73 P.3d 22, 26-77 (Colo.
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 P.3d 50 (Colo. 2003),
conjunctive use provisions within the Water Right Determination and
Administration Act of 1969 (the “Water Rights Act”) 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
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), “the
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, “the 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 warming.” With longer growing seasons posing one of many
arid land management risks, Knox warns that “farmers, 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 periods.”
Knox elaborates further on water inefficiencies that occur during
evapotranspiration phases in crop management: “Iit 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 “in theory, changing the water right and usage does
not conserve water because the same unit used to grow a crop is now
used/consumed for another purpose (Conrad 2008; Knox conversation 2010,
see Appendix for evapotranspiration credit).”
Conjunctive Use Management
Many believed the solution to the well problem was the optimum
utilization of the state's water resources through conjunctive use. In this
manner, surface water and tributary groundwater were treated equally,
resulting in an increase and/or 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
“conjunctive use,” of surface and groundwater uses in all of Colorado's 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):
“While 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 systems.”
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, “Colorado Review: Water Management
and Land Use Planning Integration” (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
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
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 home’s building envelope from the inside out
(NAR's 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 C.R.S. 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, C.R.S. 37-80-120 states that the “substituted
water should be of quality and quantity so as to meet requirements of use
normally put by the senior right.”
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 P.2d 646,650 (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
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
“The best way to change a norm is through education (Hope Babcock 2009).”
Impressively, efforts aimed at satisfying Colorado’s 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):
C.R.S. 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 C.R.S. 37-96-101 to 103.
1989; amended 1991, 99.
Water Metering Act C.R.S. 37-97-101 to 37-97-103. 1990; 2004.
Homeowner Association Restrictions C.R.S. 37-60-126(11)(a)2003;
Water conservation plans C.R.S.37-60-124 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
EPA “Community-Based Environmental Protection (CBEP)” 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 Engineer’s 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 Court’s ruling in Simpson v. Bijou, I agree with the
Court’s 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 C.R.S. 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 C.R.S. 37-92-305 and C.R.S. 37-92-308 restricting the authority of the
SEO to further administer SWSPs except those based solely on provisions
stated in C.R.S. 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
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Court Opinions and Rulings (see Appendices for comprehensive list)
Colorado water courts Water resume archives Water District One:
Alamosa-La Jara Water Users Prot. Ass'n v. Gould, 674 P.2d 914 (Colo.
City & County of Denver v. Fulton Irrigating Ditch Co., 506 P.2d 144 (Colo.
City & County of Denver By & Through Its Bd. of Water Comm'rs v.
Consolidated Ditches Co. of Dist. No. 2, 807 P.2d 23 (Colo. 1991).
City of Thornton v. Bijou, 926 P.2d 1 (1996).
City of Thornton v. City & County of Denver, 44 P.3d 1019 (Colo. 2002).
City of Aurora v. State Engineer, 105 P.3d 595, 612-14 (Colo. 2005).
Coffin v. Left Hand Ditch Co., 6 Colo. 443 (1882).
Fellhauer v. People, 447 P.2d 986 (Colo. 1968).
Fort Morgan Reservoir & Irrigation Co. v. Groundwater Appropriators of S.
Platte River Basin, Inc., 85 P.3d 536 (Colo. 2004).
Groundwater Appropriators of the S. Platte River Basin v. City of Boulder, 73
P.3d 22, 26-77 (Colo. 2003).
Irwin v. Phillips, 5 Cal. 140 (1855).
Kuiper v. Atchison, T. & S.F. Ry., 195 Colo. 557, 581 P.2d 293 (1978).
Water rule power
Kuiper v. Gould, 583 P.2d 910 (Colo. 1978). Water rule power
PUD No. 1 of Jefferson County v. Washington State Department of Ecology
849 P.2d 646,650 (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 P.3d 50 (Colo. 2003).
Well Augmentation Subdistrict of the Central Colorado Water Conservancy
District v. City of Aurora, Case Nos. 03CW99 & 03CW177 (2009). Oral
argument: Whether the court erred in ruling that §37-92-305, C.R.S.
requires the Well Augmentation Subdistrict of the Central Colorado Water
Conservancy District (“WAS”) to replace depletions from well pumping that
occurred prior to WAS’ augmentation plan application.
Wilderness Soc'y v. Robertson, 824 F.Supp. 947 (D. Mont. 1993).