Wells Connected to Surface Rights: Lawyers Express Caution About Changes in Water Law to Allow More Underground Use.

By Chris Woodka, The Pueblo Chieftain, Colo.

Sep. 28–COLORADO SPRINGS — Wells in Colorado are subject to the same system of prior appropriation — first in time, first in right — as surface appropriation, lawyers explained Thursday at a two-day statewide conference looking at state groundwater issues.

Laws, however, have had to evolve to keep up with nature.

“When the law defies the laws of nature, the law is an ass,” joked Colorado Supreme Court Justice Greg Hobbs. Hobbs, a water lawyer before joining the high court 11 years ago, writes most of the decisions dealing with water law for the court.

Hobbs described how Colorado water law evolved by 1965 to recognize that large areas of groundwater in the state are connected to streams. The exceptions are designated groundwater basins and the deep aquifers of the Denver Basin that are not connected with any surface supplies.

“Just as a ditch is a diversion structure, a well is a diversion structure,” Hobbs said. “If you’re in a low-water year, you’re subject to curtailment.”

A well permit is just permission to drill for the water, and water obtained from the well is subject to the same requirements for beneficial use as surface water, he explained.

A subsequent law passed in 1969 introduced the concept of augmentation, which requires replacement water to the stream for water pumped out of priority.

In the years after 1969, the Legislature passed laws that gave authority to the state engineer to implement temporary augmentation plans, but still requiring court filings.

“The state engineer said in approving supplemental supply plans, you’ve got to go into court. People did not follow suit,” Hobbs said.

Supreme Court cases in recent years ruled the State Engineer cannot issue supplemental supply plans year after year if users do not file for augmentation plans in courts. Those court decisions resulted in the curtailment of agricultural wells in the South Platte basin last year.

“The Legislature is moving a little bit,” said Hobbs, citing legislation on leases, augmentation, water banks and temporary changes in the last five years.

Other lawyers took up questions of how water could be stored in an aquifer.

Mike Shimmin said aquifers can be used for storage under current laws, but must meet specific criteria outlined in one of Hobbs’ opinions.

“If you put the water in, it’s not going to stay put,” Shimmin said. “If you take it out the next year, the conditions are not the same.”

Much of what is called storage is actually augmentation, Shimmin said.

Denver lawyer Steve Sims explained Aurora’s Prairie Waters Project, which proposes to pump reclaimed return flows into a well field at Broomfield and pumping it back to a treatment plant at Aurora.

The underground storage, located on farms Aurora bought, will be confined by impermeable barriers.

“It’s not so much storage, a giant sand filter to clean the water,” Sims said.

David Robbins, who has represented the state in interstate compact cases, said careful accounting is needed in any aquifer storage project.

“The inflow has to match the outflow,” Robbins said.

Colorado can’t live in a “fantasy world” and think there will be more water available through underground storage.

“We need to manage what is apportioned to us,” Robbins said. “We’ve stretched the rubber band as far as we can in every basin. We’re not going to change our obligations to our neighbors. We need to live with what we have and not waste time getting more from someone else.”

Colorado Springs lawyer Sandy MacDougall said the rights of landowners on top of proposed underground reservoirs needs to be considered.

Changing water quality, moving water under land or changing surface flows all need to be considered, MacDougall said.

“Don’t allow the water to pass through and cause damage to the land,” MacDougall said. “If you’re bringing these plans forward, don’t harm anyone, because I think they’ll sue you if you do.”

Melinda Kassen, a lawyer for Colorado Trout Unlimited, said the organization has recently become concerned about how groundwater depletions might affect surface water supplies for fish.

“I’m glad to see Colorado law connects surface water to groundwater. The Montana Supreme Court decided that just last year,” Kassen said. “Trout Unlimited cares about groundwater and its impact on the availability of surface water.”

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Copyright (c) 2007, The Pueblo Chieftain, Colo.

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