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administers in accordance with the terms of decrees which has efficiently served water users <br />over the past 40 years. <br />d) Why should the state engineer be given broad di scretion to determine real property rights? <br />That is a matter that rightly should be veste d in the courts as a matter of constitutional <br />protection of property rights. As has always been the case in Colorado, the State Engineer <br />should administer decrees in accordance with de cree terms in order to protect water users <br />from injury. <br />e) Regarding the subject of “well calls,” ther e is a good reason there are not well calls the <br />“call” does not produce water for a water right t hat is diverting. The Division Engineer told <br />the Task Force on July 27 that a “call” is a “demand for water by a user.” A well call does <br />not supply water to a well. That is why under the 1969 Act wells are required to replace <br />depletions rather than place a call. If well s think they can prevent injury with less than 100% <br />replacement, they can be so administered, but th ey don’t need to place a call for that reason. <br />f) The State Engineer believes the imposition of well calls is a way to manage the South Platte <br />River. The concept of managing the river, especia lly reservoir fills, is a significant departure <br />from priority administration. If the power to m anage the South Platte River is to be granted to <br />the State Engineer, it should be done directly in a manner that provides adequate due process <br />protection of property rights, with all interest ed parties having the opport unity to address this <br />concept, rather than indire ctly through a “well call” <br />g) Regarding elimination of a paper fill, the Ta sk Force’s July 27 memorandum contains no <br />explanation of how this idea would be applied in the context of the executive order. When and <br />under what circumstances would this be allowe d or occur, and to what end? Under most <br />reservoir operational scenario s the failure to impose a paper fill would lead to injury by <br />causing extended senior calls in favor of junior rights. <br />h) Any exercise of discretion has the potential to lead to a lawsuit by adversely affected water <br />users. Creating the basis for additional water co urt litigation to review administrative actions <br />would not simplify the judicial process. Co mpare the Box Elder designation hearing, which <br />has five levels of administrati ve and judicial review (hearing officer, ground water commission, <br />district court, court of appeal s, and supreme court), to water court review, which is completed <br />with a single appeal to the supreme court. <br />i) Does the state intend to open its wallet when the St ate Engineer’s exercise of discretion injures <br />a water user? Consider a lawsuit by the owner of a reservoir that fails to fill after aggregation <br />or by a direct flow or storage us er adversely affected by a well call. <br />Option 5: <br />5) Prepayment of Well Depletions. <br />i) The Task Force has not explained how this proposition would work and it is unclear how it <br />can be made to work. There has been no desc ription of the operation of any prepayment <br />plan to the Task Force, nor have compelling exa mples of previous successful prepayment <br />plans been presented to the Task Force. Under the executive order, the Task Force has to <br />define the problem that prepay ment would solve and define the means by which the solution <br />would work. That has not yet been done. <br />7 <br />