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Colorado water resource and management

Colorado water resource and management

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  • 1. 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 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
  • 2. 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
  • 3. 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. Background 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
  • 4. 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).
  • 5. 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.
  • 6. 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
  • 7. 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 2008). 2. The decreed appropriation case of Empire v. Moyer (2001) signaling the beginning of the end for GASP
  • 8. 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
  • 9. 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 River. 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
  • 10. 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 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- 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
  • 11. 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
  • 12. 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. 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
  • 13. 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).
  • 14. 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
  • 15. 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
  • 16. 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 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.
  • 17. 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
  • 18. 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,
  • 19. 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
  • 20. 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
  • 21. 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
  • 22. v. Bijou Irrigation Co., 69 P.3d 50 (Colo. 2003). Additionally, it is now a requirement that augmentation plans document proof of replacement water supplies. 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).
  • 23. 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 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.
  • 24. 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
  • 25. 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 & 03CW177 (2009). Groundwater Appropriators of the S. Platte River Basin v. City of Boulder, 73 P.3d 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 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
  • 26. 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), “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
  • 27. 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
  • 28. 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
  • 29. 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):
  • 30. 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,
  • 31. 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
  • 32. 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 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
  • 33. 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; 2005.
  • 34.  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 planning.  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.
  • 35. 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 growth.
  • 36. 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. BLM. 1984. Water rights policy. United States Department of the Interior, Bureau of Land Management, Manual Transmittal Sheet 7250 - Water Rights, 3/19/1984. Brooks, David.B. 2006. An operational definition of water demand management. Water Resources Development, 22 (4): 521-528. Brooks, David.B, 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, B.W. 1995. Denver’s urban ground-water quality: Nutrients, pesticides, and volatile organic compounds: U.S. 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. Central Colorado Water Conservation District. 2010. Effect of SB 09-147 on the Well Augmentation Subdistrict members. Colorado Division of Water Resources. 2010. Water administration. Colorado Water News. 2010. Water right basics. s.html Conrad, Thomas. 2008. Some thoughts on water, electricity and climate change. August 2008 article for Alt Energy Stocks. n_water_electricity_and_climate_change.html Cyran, John J., Edward R. Kowalski, Linda J. Bassi. 2000. City of Central Decision, victory for Colorado's instream flow program, Colorado's Prior Appropriation System, and Colorado. 10 U. Denv. Water L. Rev. 259-286. Dennehy, Kevin F. 1991. National Water-Quality Assessment Program— South Platte River Basin: U.S. Geological Survey Open-File Report 91- 155. Dunford, D.S. 2003. Effects of managed groundwater recharge on the hydrology and water quality of the South Platte River Basin, Colorado
  • 37. AES Project 2002-2003. 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. EPA. 2004. Final report: A comparative institutional analysis of conjunctive management practices among three southwestern states, at gov/ncer_abstractDetail/abstract/615/report/F (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, 1:24-25. Hobbs, Gregory. 2004. Citizen’s 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, LLC.12 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. Kassen, Melinda. 2003. Symposium: Statutory expansion of state agencies’ authority to administer and develop water resources in response to Colorado’s drought. 7 U. Denv. Water L. Rev. 47. Knox, Ken. 2010. Conversation by email (5-26-10). Litke, D.W. 1995. Nutrients in the South Platte River, 1993-95: U.S. Geological Survey Fact Sheet FS-105-95. Kimbrough, R.A. 1995. Are streams in agricultural and urban areas contaminated by pesticides? U.S. Geological Survey Fact Sheet FS- 104-95. MacDonnell, Lawrence J. 1986. Colorado's 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.
  • 38. McMahon, P.B., Litke, D.W., Paschal, J.E., and Dennehy, K.F. 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, P.B., Lull, K.J., Dennehy, K.F., and Collins, J.A. 1995. Quantity and quality of groundwater discharge to the South Platte River, Denver to Fort Lupton, Colorado, August 1992 through July 1993: U.S. 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. P.J. 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. National Association of Realtors. 2010. NAR's Green Resource Council. Nature Conservancy, The. 2010. Carbon footprint calculator. 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. 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. 6.pdf Sower-Hall, Carmen, Holly I. Holder. 1997. Water Quality Issues in Augmentation Plans and Exchanges 1 U. Denv. Water L. Rev. 96: 96- 108.
  • 39. 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, T.F., C.L. Bell, M.L. Miller, et al. 2007. Environmental Handbook, 19th Edition. Government Institutes, Scarecrow Press, NY. p. 299-332. Water Court Committee, Colorado Supreme Court. 2000. Non-Attorney’s Guidebook to Colorado water courts. Attorneys_Guidebook_to_Colorado_Water_Courts_Final.pdf Wittie, Steve. 2010. Wolfe, Sarah and David.B. 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, K.R. 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.
  • 40. Court Opinions and Rulings (see Appendices for comprehensive list) Colorado water courts Water resume archives Water District One: vision_ID/1 Opinions: /Index.cfm Cases Alamosa-La Jara Water Users Prot. Ass'n v. Gould, 674 P.2d 914 (Colo. 1983). City & County of Denver v. Fulton Irrigating Ditch Co., 506 P.2d 144 (Colo. 1972). 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
  • 41. 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).