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appropriator of the replacement supplies. Avail ability of excess credits will be particularly <br />uncertain during times of drought, when appropriato rs are most likely to n eed all credits they <br />have generated by their efforts and the potential injury to senior users is at its highest. It <br />would be very unwise to base decreed augmenta tion plans having well depletions lasting for <br />decades on irregular and unreliable short-te rm leases of excess credits. <br />b) To the extent that excess credits can be of value to replace depletions in specific plans, for <br />example, when a brief and unanticipated replac ement supply shortage occurs, many existing <br />decrees already permit this practice. These decrees permit augmentation plan owners to sell <br />augmentation credits to well users on a short-term basis subject to notice to other water users <br />who may be affected by the transfer and well us e resulting from it. One way decrees already <br />allow such use of excess credits is by substi tute water supply plans and interruptible water <br />supply agreements approved by the State Engineer. <br />c) Consistent with water court decrees, the Colora do water statutes also provide for use of excess <br />credits in decreed augmentation plans. Under C.R.S. 37-92-305(8), water court decrees may <br />provide procedures for the addition of te mporary augmentation supplies to decreed <br />augmentation plans on a short-term basis so long as injury is prevented. In addition, C.R.S. <br />37-92-305(9) allows the State Engineer to approv e interruptible water supply agreements so <br />long they do not result in in jury to other water users. <br />d) Any use of excess credits must be carefull y managed under the terms and conditions of water <br />court decrees. Unless very carefully regul ated, use of excess credits can provide the <br />opportunity to play a shell game w ith replacement water if many different plans claim the right <br />to use excess credits from the same source at the same time. Use of excess credits by more <br />than one water user can result in difficulty in measuring and a ccounting for the use of excess <br />credits in separate plans. Any use of excess cr edits needs to be the result of an open and <br />transparent process to protect seni or water rights without requir ing the owners of senior water <br />rights to bear material cost s related to the management and accounting of use of excess <br />credits. <br />e) To the extent that the Task Force may be consid ering a procedure by which the State Engineer <br />would allow the use of excess credits without notice to potentially affected water users, there is <br />a significant potential for injury to senior water users, which places this option outside the <br />scope of the executive order. Water users presum ably would want the ability to use the excess <br />credits to enlarge the amount of well pumping they would otherw ise be allowed. Other water <br />users must have the right to notice and a hearing on plans that may affect their water rights. <br />Assignment of excess credits should not be a ma tter for unilateral adm inistrative discretion, <br />which is why current decrees and statutes prov ide for due process protections when excess <br />credits are used to supplement the repla cement supplies in a water court decree. <br />Option 3: <br />3) Water Court reform. The memorandum pr esented to the Task Force by Alexandra <br />Davis at the July 27, 2007, meeti ng included reference to the follo wing possibilities: streamlining <br />the Water Court process, recogni zing specific engineering methods or calculations via rulemaking, <br />increasing the authority of the water referee, and requiring demonstration of actual, not theoretical <br />injury). <br />a) The specifics of this option have not yet been pres ented to the Task Force or public. However, <br />fundamental changes in the structure or authority of the water courts of the kind in the July <br />3 <br />