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only in informal proceedings before a water referee. In some instances, the water referees are <br />not even lawyers and are not fully conversant with the legal concepts governing property or <br />water rights. In any event, if litigants want to keep their cases before the referee, they can do <br />so under the current law. As an alternative to the refereeprocess, under current law parties <br />may hire mediators if they prefer to do so to expedite settlement of water court cases.. <br />h) If the power of the referee is increased, that will just shift the location of the fight, not the scope <br />or intensity. Any streamlining of the water court process must accord parties a level of due <br />process necessary to protect their property rights. Given that appeals to the water court would <br />clearly still be needed (just as now there are protests to most contested referee hearings), <br />holding separate hearings before both the referee and water judge would be likely to make the <br />water court process less efficient. See, e.g., the ongoing Box Elder litigation, which is <br />currently on its third level of review out of a total offive po?ssible levels of review. In fact, <br />nearly ald contested cases are already rereferred because the litigants want to avoid the cost of <br />a duplicative hearing before the referee. Given the informality of proceedings before the <br />referee, a full water court hearing is essential to protect the anterests of applicants and <br />objectors. <br />i) Requiring the use of a particular engineering technique wc?uld limit the options available to <br />parties and the court to prevent injury. A one-size-fits-all approach to engineering is no benefit <br />to applicants or objectors. Each case brings be, f'ore the cor.rrt different factors to consider in <br />evaluating injury, such as wells which are located at various distances from the river, different <br />sources of replacement water, different timing and mainterrance requirements for return flows, <br />and di, f'ferent types of infrastructure used to transport andlvr store water. The litigants and the <br />court should not be restricted from having the information best-suited to the case at hand when <br />it arises, which would stifle the development of new engineering tnethodologies or techniques. <br />Regarding the two principal techniques used in tributary groundwater cases, even Mr. Bennett <br />indicated to the Task Force at the July 27 meeting that neither Glover nor Modflow is <br />inherently superior and depended on the accuracy of the data behind the analyses. The use of <br />Glover, Modflow, or any other technique should be evaluated and used by the parties and the <br />court on a case-by-case basis without limitation by an arbitrary legislative mandate to use a <br />particular engineering technique in all cases. <br />j) As to injury, the suggestion by some that the objectors be rE-quired to show "actual injury" is a <br />smokescreen for shifting the burden of proof on injury, since it would require the objector to <br />demonstrate "actual injury" rather than require the appliccxnt to show that there will not be <br />injury. Continuing to rely on the existingpresumption that_{ailure to replace depletions on an <br />overappropriated stream wild cause injury is a reasonable approach to addressing the injury <br />issue in an augmentation plan case. The applicant, and not the objectors, should continue to <br />bear the burden of proving that the applications they have faled with the water court wzll not <br />injure other water users. Making a fundamental change in ,the burden of proof would change <br />over 100 years of law on water rights transfers and other ccrses involving the injury issue, and <br />is beyond the scope of the executive order. <br />k) This proposed change in the law would also require every water user to appear in every case. <br />If an objector has to show "actual injury, " it can only be done in court. If the Task Force <br />wants to increase the litigation burden for all water users dramatically, this suggestion is a <br />perfect way to do so. It is a full employment act for water lawyers and engineers. Instead, <br />water users should be allowed to continue to rely on the applicant's burden to show non-injury <br />5