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/~ <br />.lddendum to the Attorney General's Report <br />Summary of the Buffalo Park Supreme Court decision (06SA373), dated Nov 3, 2008 <br />The Buffalo Park Development Company, et al. sought approval of conditional ground water <br />rights and an augmentation plan to support five new subdivisions. The Supreme Court affirmed <br />the water court's decision denying conditional water right claims for three of the five <br />subdivisions because the applicant had failed to show that ground water was available for <br />appropriation. The court also dismissed the augmentation plan for these three subdivisions <br />because the applicant failed to show an absence of injury to small capacity wells in the area. <br />"T'he Court held that the trial court correctly found that: (1) the applicant tailed to make a showing <br />of water availability for a b~round water right and cannot reserve such a showing for an <br />augnnentation plan's retained jurisdiction period; (2) the applicant did not show that it's plan For <br />augmentation would replace depletions in timing or amount and had not shown the sut~ticiency of <br />legally available replacement water; (3) the augmentation plan centered on protecting surface <br />water uses, not on vested ground water rights in the vicinity of the subdivisions; (4) exempt well <br />owners who have tiled a water court application for their bnoundwater rights have standing to <br />require strict proof and to assert injury in an augmentation plan proceeding, and (5) the applicant <br />had an adequate opportunity to propose terms and conditions to prevent injury under the <br />augmentation plan prior to the entry of a final decree. <br />Expert testimony was provide by Bruce Kroeker on behalf of the well owners that the current <br />level of ~•oundwater withdrawal exceeded the sustainable yield of the relevant aquifers and, <br />therefore, the aquifer is being mined and no water was available for appropriation. Kmckcr <br />opined that injury would occur because the augmentation plan only provided for replacement to <br />surface water rights and not to the small capacity wells. Buffalo Park's engineer also admitted <br />that he lacked site-specific evidence that recharge from precipitation would offset existing <br />withdrawals and that, if such were the case, the drop in water levels should not be occurring as it <br />is. <br />In the dissent, Justice Coats and Justice Eid agreed with the majority that But~falo Park did not <br />meet its burdens of proof as to the availability of water for appropriation and the absence of <br />injury under the augmentation plan, however, they do not believe the courts should continue to <br />treat the determination of the availability of un-appropriated water to be separate and distinct <br />from the determination of injury to water rights under an augmentation plan. Furthermore, they <br />believe that, under the circumstances ofthis case, the applicant should have been be able to <br />propose terms and conditions to prevent injury after the entry of the final decree. <br /> <br />