Letter from Harmony Ditch Company

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c. The Task Force is charged with considering the problems,faced by all water users on the South Platte River. If the Task Force will consider an amnesty, then it at a minimum needs to consider who will be hurt? What amount of water is involved and where witl the depletions affect the river? What water rights are most likely to be injured? How in particular will this affect WD 64 and compliance with the SPR Compact? Moreover, if the intention of the amnesty is to allow wells that don't yet have plans for augmentation because they are short of augmentation supplies, will the amnesty eliminate enough of the wells' pre-existing replacement obligations so that they can get decreed augmentation plans under which all remaining depletions can be replaced? d. As an example of the potential injury from amnestyfor depletions from pre-1974 pumping, the FRICO system depends upon 1909 storage rights for Barr Lake and Milton Reservoir, which are relatively junior in relation to downstream South Platte reservoirs (but which are signiftcantly senior to the wells). It is likely that unpaid depletions would disproportionately impact FRICO's relatively junior rights because the continuing depletions would result in extended downstream senior calls. e. At the August 13 Task Force meeting, testimony was given that depletions from pre- 1974 pumping would be approximately 2.5% of total well depletions to the South Platte River. However, this percentage was never quantified as an acre foot amount, nor was it clear whether thfs percentage applies to all wells or only those that are not yet part of augmentation plans. Nor was information provided regarding where these depletions affect the river or what water rights may be affected. Absent this information, the Task Force does not have before it a proper basis to make an informed decision to assure that there is no injury from the proposed amnesty. f. Selecting 1974 as an amnesty date is arbitrary. Groundwater has long been understood to be a part of surface streams and subject to the doctrine of prior appropriation. In Nevius v. Smith, 279 P. 44, 45 (Colo. 1929), the Colorado Supreme Court recognazed that water that is tributary to surface streams is subject to the priorities of senior surface users. Echoing a similar note, in 1953, the Colorado Supreme Court said in Safranek v. Town of Limon. 228 P.2d 975, 977 (Colo. 1951): "Under our Colorado law, it is the presumption that all ground water so situated finds its way to the stream in the watershed of which it lies, is tributary thereto, and subject to the appropriation as part of the waters of the stream. " Groundwater users knew long before the 1974 rules were adopted for Water Division 1 that groundwater was subject to the demands of senior surface rights. , Senior water users would suffer injury if arry amnesty was granted to ground water users from 1974 to the present. 2) Option 2: Providing more flexibility for using excess augmentation credits. a) We understand this proposal to have the purpose of promoting exchanges of excess replacement credits among augmentation plans in order to promote well pumping. Well pumping creates depletions that can last for decades. As a result, the availability of short-term excess credits appears to have little value as far as allowing additional pumping within an augmentation plan that must replace long-term depletions in order to prevent injury. Moreover, excess credits are not a dependable augmentation supply. Their availability, if any, will vary from year to year based on annual climatic conditions and the changing needs of the 2