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ii) It appears that prepayment of well depletions assumes that the well user has water <br />currently in hand to use for prepaid replacem ent of depletions. If the problem under <br />consideration by the Task Force, and faced by well users, is that some well users have a <br />shortage of augmentation supplies, prepayment do es not appear to be a realistic solution to <br />the problem well users face. <br />iii) Colorado water law requires that depletions be replaced in time, location, and amount <br />sufficient to prevent injury to other water use rs. The Task Force has not defined how the <br />concept of prepayment of depletions would assure t hat these important legal and <br />engineering standards are met. <br />iv) If well users have replacement supplies av ailable in the time, location and amount to <br />“prepay” depletions, they should instead inco rporate that water into a water court- <br />approved plan for augmentation, and manage thei r well pumping in accordance with the <br />amount of replacement supplies they actually have. The conc ept of prepayment should not <br />be used as a method by which replacemen t of ongoing depleti ons can be avoided. <br />v) Prepayment has many of the same problems as aggregation. How will it be determined <br />who should be “prepaid,” how much prepay ment is required, and who will make these <br />determinations? If prepayment is made to th e wrong water right, how can this be corrected <br />so that the shorted water users are not injured? Can a reservoir owner be forced to release <br />water that it incorrectly received as prepayme nt, and if so how can it be assured that such a <br />release will be physically possible and sufficien t to protect those who have been shorted by <br />the mistake? Would the reservoir forced to release water then be allowed to store an <br />amount of water equivalent to t hat released? How could the re servoir do this if it was no <br />longer in priority? How would it be assured that historical seepage and return flows are <br />maintained if diversion and storage pattern s are changed? These are just a few of the <br />issues that would arise with prepayment of de pletions. The Task Force has not considered <br />any of these issues. If the Task Force is to consider this option, re servoir owners should be <br />given notice and a hearing. <br />vi) Prepayment will not promote stability and re liability of water rights. Approval of <br />prepayment plans will require a co stly, time-consuming and ever-changing annual <br />determination of who is to be prepaid and how much is to be prepai d, all subject to the <br />uncertainties identified in the previous par agraph. Repayment of depletions in time, <br />location, and amount under a one-time court-appr oved augmentation plan provides a more <br />economical, transparent and stable process fo r the protection and reliability of water <br />rights. <br />vii) It appears that the prepayment option the Task Force has in mind may call for the State to <br />be responsible for approving and managing any type of prepayment system. It is far from <br />certain that the State has the re sources and staff to undertake this effort. It must be assured <br />that senior users will not be responsible for shouldering the financ ial burden associated <br />with investigating and evaluating prepayment proposals when their interests can be <br />protected simply by adhering to the rule to replace depletions in time, location and amount. <br />viii) As stated above with regard to aggregation, the prepayment option will open the State <br />up to possible legal action and damages if a water us er is shorted by failure of prepayment <br />to prevent injury. Is the State prepared to take measures to compensate users by <br />prepayments or to insure that water users who may be injured do not bear the financial <br />8 <br />