WellRegulationInSP ‎(2)‎

• File Number: 8420.500
• Description: South Platte River Basin Task Force
• State: CO
• Basin: South Platte
• Date: 6/1/2007
• Author: Water Resources
• Title: Report for the SPTF - Well Regulation in the South Platte River Basin of Colorado
• Water Supply Pro - Doc Type: Report/Study

South Platte River Task Force Briefing Document
During the mid-1960s dry conditions and low streamflows resulted in complaints by senior
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surface water rights on South Platte River and Arkansas River, claiming wells were
causing depletions and should be regulated within the priority system like surface water
rights.
In June 1966, the Division Engineer in the Arkansas River basin attempted to regulate a
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limited number of wells, in response to complaints by holders of senior surface water
rights.
This led to the important 1968 Colorado Supreme Court decision in Fellhauer v. People ,
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167 Colo. 320, 447 P.2d 986 (1968). In Fellhauer , the Supreme Court held that any
regulation of wells must be preceded by the promulgation of reasonable rules and
regulations, and that wells should only be regulated to the extent that it resulted in a
reasonable lessening of material injury to senior water rights. The Court stated that wells
should be allowed to operate, to the extent possible, pursuant to conditions that protected
senior users.
Fellhauer contained the now-famous statement by Ju stice Groves that “as administration
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of water approaches its second century, the curtain is opening upon the new drama of
maximum utilization and how constitutionally that doctrine can be integrated into the law of
vested rights.” 167 Colo. at 336, 447 P.2d at 994 (emphasis added).
In 1968, the General Assembly authorized two studies by consulting engineers to
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determine if unregulated wells were causing depletions to stream flows Both studies
found that the declining stream flow was related to increased well pumping since the
1950s.
Passage of the 1969 Act and Subsequent Regulations
In 1969, the Legislature enacted the Water Right Determination and Administration Act,
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now codified at C.R.S. § 37-92-101, et seq. (“1969 Act”). Among other things, the 1969
Act required all tributary wells to file for adjudication in water court by July 1, 1972 and
further required the State Engineer to administer the wells, once adjudicated, within the
priority system. The 1969 Act also gave the State Engineer the authority to promulgate
rules to assist in the administration of all wells. The provisions of the 1969 Act applied to
all tributary wells in addition to any propos ed wells. There was no provision to exempt
existing wells from the new laws.
The legislative declaration of the 1969 Act provides that “it is the policy of this state to
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integrate the appropriation, use, and administration of underground water tributary to a
stream with the use of surface water in such a way as to maximize the beneficial use of all
of the waters of this state.” C.R.S. § 37-92-102(1)(a).
The 1969 Act introduced the concept of a “plan for augmentation,” by which a well or other
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junior water right could divert or operate out-of-priority so long as replacement water was
supplied in time, location, and amount sufficient to prevent injury to senior water rights.
The 1969 Act placed jurisdiction for administration of the water rights of the state
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completely within the control of the State and Division Engineers. Section 148-21-34,
C.R.S. (1963, as amended) (now codified at § 37-92-501, C.R.S.). In 1970 State Engineer
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