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c. The Task Force is charged with consideri ng the problems faced by all water users on <br />the South Platte River. If the Task Force will consider an amnesty, then it at a <br />minimum needs to consider who will be hurt? What amount of water is involved and <br />where will the depletions affect the river? What water rights are most likely to be <br />injured? How in particular will this a ffect WD 64 and compliance with the SPR <br />Compact? Moreover, if the inte ntion of the amnesty is to al low wells that don’t yet have <br />plans for augmentation because they are short of augmentation supplies, will the <br />amnesty eliminate enough of the wells’ pre- existing replacement obligations so that <br />they can get decreed augmentation plans under which all remaining depletions can be <br />replaced? <br />d. As an example of the potentia l injury from amnesty for depletions from pre-1974 <br />pumping, the FRICO system depends upon 1909 storage rights for Barr Lake and <br />Milton Reservoir, which are relatively junior in relation to downstream South Platte <br />reservoirs (but which are significantly senior to the wells). It is likely that unpaid <br />depletions would disproportionately impact FRI CO’s relatively junior rights because <br />the continuing depletions would result in extended downstream senior calls. <br />e. At the August 13 Task Force meeting, testim ony was given that depletions from pre- <br />1974 pumping would be approximately 2.5% of tota l well depletions to the South Platte <br />River. However, this percentage was never quantified as an acre-foot amount, nor was <br />it clear whether this percentage applies to all wells or only those that are not yet part of <br />augmentation plans. Nor was information prov ided regarding where these depletions <br />affect the river or what water rights may be affected. Absent this information, the Task <br />Force does not have before it a proper basis to make an informed decision to assure <br />that there is no injury fr om the proposed amnesty. <br />f. Selecting 1974 as an amnesty date is arbitrary. Groundw ater has long been understood <br />to be a part of surface streams and subject to the doctrine of prior appropriation. In <br />Nevius v. Smith , 279 P. 44, 45 (Colo. 1929), the Colorado Supreme Court recognized <br />that water that is tributary to surface stre ams is subject to the priorities of senior <br />surface users. Echoing a si milar note, in 1953, the Colorado Supreme Court said in <br />Safranek v. Town of Limon , 228 P.2d 975, 977 (Colo. 1951): “Under our Colorado <br />law, it is the presumption that all ground water so situated finds its way to the stream in <br />the watershed of which it lies, is tributary thereto, and subject to the appropriation as <br />part of the waters of the stream.” Groundwat er users knew long before the 1974 rules <br />were adopted for Water Division 1 that gr oundwater was subject to the demands of <br />senior surface rights. , Senior water us ers would suffer injury if any amnesty was <br />granted to ground water users from 1974 to the present. <br />Option 2: <br />2) Providing more flexibility for us ing excess augmentation credits. <br />a) We understand this proposal to have th e purpose of promoting exchanges of excess <br />replacement credits among augmentation plans in order to promote well pumping. Well <br />pumping creates depletions that can last for decades. As a result, the availability of short-term <br />excess credits appears to have little value as far as allowing additional pumping within an <br />augmentation plan that must replace long-term depletions in order to prevent injury. <br />Moreover, excess credits are not a dependable augmentation supply. Their availability, if any, <br />will vary from year to year based on annual clim atic conditions and the changing needs of the <br />2 <br />