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The New Rules Hal Simpson. State Engineer Colorado Division of Water Resources I think the reality of complying with the Arkansas River Compact is now fully upon us. One of the key provisions of the compact was that after December 14. 1948 there was to be no additional water resource development in the Arkansas basin in either state if it depleted usable state line flows. You heard David Robbins say that the Special Master. affirmed by the U.S. Supreme Court, had found that. in fact. around 1500 post-compact wells were constructed in Colorado. They were primarily irrigation wells that did violate Article 4D of the compact., so we are facing that reality. That is. as David indicated, what we are trying to deal with through rule-making. Before I get into the new rules, I want to give you a little background on why we have to go about this type of water rights administration through rule-making. The role of the State Engineer traditionally has been to administer water rights. and that is done through the priority system that Judge Tracey described so well at lunch. However, when it comes to enforcing certain other types which are not so clear as a water right. such as a compact or bringing a well into the priority system as was required by the 1969 Water Rights Determination Act. we have to follow certain other procedures set forth by statute. and that is called rule-making, or we promulgate rules and regulations -- that is another term for rule-making, The 1969 Act had some very specific requirements or principles that I must follow if I am to promulgate rules dealing either with interstate compacts or the administration of groundwater rights. The 1969 Act brought together the surface water priority system, which dated back into the 1860s, with wells that had never been required to be adjudicated. The 1969 act required them to be adjudicated and thrust into that priority system, wells that are a hundred years more junior. To do that. the statutes required that it be done through rule-making, and very specific steps have to be followed The rules have to be specific to a river basin; they have to be specific to certain types of aquifers; and they. have to be able to optimize water use while maintaining the priority system. That is difficult. when you bring wells into the priority system. The rules must be published in every county where they will go into efi"ect at least 60 days prior to their effective date. Since time is of the essence, the water court has to hold hearings on any protest of those rules as soon as they occur. I want to talk about the existing rules, those that were in effect through the end of 1995, so you know we just aren't stepping forward with rules for the first time in the Arkan,sas River Basin. In 1973 Clarence Kuiper, the State Engineer at that time. promulgated rules to respond to the 1969 act. As Judge Tracey had indicated, there had been a false start down here in the Arkansas Basin with the Felhauser case, where there were not established procedures set forth by rules on how we were going to administer wells. The division engineer had selected 30 wells very close to the river, and shut those down. That was not acceptable to the district court nor to the Supreme Court, which directed the State Engineer to promulgate rules. In 1973, after the Felhauer case had gone to the Supreme Court and been decided, Mr Kuiper promulgated rules that basically curtailed pwnping in the Arkansas River basin four days per week, allowing pwnping three days. . They were effective in 1973, and the rules were not protested. At the beginning of 1974 Mr. Kuiper amended those rules and filed another set through the procedure set forth in the statute to start curtailingpwnping more. In 1974 there would be five days of no pwnping, in 1975 six days, and total curtailment in 1977. These rules were protested vigorously by the groundwater users. There was a trial before the water court in Pueblo. Judge Gobin. the water judge, ruled that the State Engineer had not allowed the 1973 rules to operate long enough to determine through experience and investigations whether in fact they were acceptable or suitable without tightening down on well owners more. The State Engineer appealed that decision to the Colorado Supreme Court. The Supreme Court and Judge Gobin said, "You didn't conduct the necessary investigations or allow the 1973 rules to operate long enough, II Because of that decision and the fact that there were no requests from well owners or surface water users to change the rules, they have been in effect through the end of 1995 or about 23 years. But in response to the litigation with Kansas, which filed its action in December of 1985, and the trial, which I believe began in 1990, we had a four-year period of very intense studies by both states to develop the basis for the litigation, and those investigations were important to any future rule-making because they provided evidence that could be utilized in future rules. Both states initiated very detailed and similar studies using computer models to evaluate the effect of post-compact wells and the effect of the winter water storage program. Both issues had been alleged to violate the compact by Kansas. Arkansas River Basin Water Forum 22 "A River of Dreams and Realities"