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as protection for their water rights, rather than having to appear in and litigate every change, <br />exchange and plan for augmentation on the question of whether an objector’s individual water <br />rights are “actually” injured. <br />l) In addition to shifting the burden of proof to ob jectors, some well users may want to impose a <br />rule by this proposal that ulti mately requires a court to balan ce benefit and injury. In other <br />words, they want to be able to argue that the “actual injury” from their well use is so small in <br />relation to the benefit the wells provide that they aren’t hurting anyone too much and they <br />should be allowed to pump even if causing some injury. Central has, for example, argued in <br />the Box Elder case that 3,000+ acre-feet of annual depletions to an already-overappropriated <br />stream is negligible. Maximum utilization of water as addressed by the 1969 Act does not <br />include the right to take water from senior water rights for the bene fit of a junior right. Such a <br />proposal would be unconstitutional, a major change in law, and well beyond the executive <br />order. <br />m) Would the “actual injury” standard apply only in augmentati on plan cases, and not other <br />injury cases, such as changes? Does the pr oposal again favor a select group of well users at <br />the expense of others well users and other water users? <br />Option 4: <br />4) Increased State Engineer authority as an Alternative to the Water Court. Note: Though <br />included in the July 27 memorandum circulated by Alexandra Davis, this option was not <br />specifically enumerated at the A ugust 13 Task Force meeting as one of the principal options for <br />consideration. Because of the potential relationshi p of this issue to the option of streamlining the <br />water court process, we have briefly addressed the issue in this paper. <br />a) If any notion of increased State Engineer discreti on is to be considered, the complexities of <br />allowing discretion within the mandate of wate r court decrees needs a detailed public airing <br />that is well beyond the charge of the Task Force. Some of these issues implicit in this proposal, <br />e.g., paper fill and well call, occupied many days of discussion at the WAS trial. They create <br />complex problems that cannot be resolved with out detailed input from all affected interests <br />across Colorado. <br />b) It can be credibly contended that State Engi neer discretion has contributed to several of <br />Colorado’s serious ongoing water problems. On the Arkansas River, the state issued well <br />permits and allowed well pumping to a degree that has resulted in 20 years of compact <br />litigation and $30 million of damages. On the South Platte River, despite the clear <br />requirement of the 1969 Act and the State Engineer ’s own rules, the state allowed wells to <br />operate annual augmentation plans for more than thirty years without su fficient replacement <br />supplies to protect other water users. Finally , in the Rio Grande basin, withdrawals in the <br />Closed Basin have lowered water levels so greatly that it may be necessary to pay well users <br />not to pump their wells. The assumption that increased State Engineer discretion will solve <br />problems now facing the South Platte River is not supported by history. <br />c) This is an attempt to redo the 1969 Act for the benefit of a minority of well users on the South <br />Platte River. A strong State Engineer with broad discretionary or adjudicative power has <br />never been accepted in Colorado. The legislature rejected making the State Engineer a “water <br />czar” when it adopted the 1969 Act in favor of ve sting protection of pr operty rights in the <br />courts. Because a few well owners have still failed to comply with the 1969 Act is no reason to <br />throw out the main concept behind the act that the courts adjudica te and the state engineer <br />6 <br />