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administers in accordance with the terms of decrees - which has efficiently served water users <br />over the past 40 years. <br />d) Why should the state engineer be given broad discretion to determine real property rights? <br />That is a matter that rightly should be vested in the courts, as a matter of constitutional <br />protection of property rights. As has always been the case in Colorado, the State Engineer <br />should administer decrees in accordance with decree terms in order to protect water users <br />from injury. <br />e) Regarding the subject of "well calls, " there is a good rea:son there are not well calls - the <br />"call " does not produce water for a water right that is diverting. The Division Engineer told <br />the Task Force on July 27 that a"call " is a"demand for water by a user. " A well call does <br />not supply water to a well. That is why under the 1969 Act wells are required to replace <br />depletions rather than place a call. If wells think they carn prevent injury with less than 100% <br />replacement, they can be so administered, but they don't raeed to place a call for that reason. <br />f) The State Engineer believes the imposition of well calls is a way to manage the South Platte <br />River. The concept of managing the river, especially reservoir fills, is a significant departure <br />from priority administration. If the power to manage the .'iouth Platte River is to be granted to <br />the State Engineer, it should be done directly in a manner that provides adequate due process <br />protection ofproperry rights, with all interested parties having the opportunity to address this <br />concept, rather than indirectly through a"well call " <br />g) Regarding elimination of a paper fill, the ?'ask Force's July 27 memorandum contains no <br />explanation of how this idea would be applied in the context of the executive order. When and <br />under what circumstances would this be allowed or occur, and to what end? Under most <br />reservoir operational scenarios the failure to impose a paper fill would lead to injury by <br />causing extended senior calls in favor of junior rights. <br />h) Any exercise of discretion has the potential to lead to a lativsuit by adversely affected water <br />users. Creating the basis for additional water court litigation to review administrative actions <br />would not simpl ify the judicial process. Compare the Box Elder designation hearing, which <br />has ftve levels of administrative and judicial review (hearirtg officer, ground water commission, <br />district court, court of appeals, and supreme court), to water court review, which is completed <br />with a single appeal to the supreme court. <br />i) Does the state intend to open its wallet when the State Enganeer's exercise of discretion injures <br />a water user? Consider a lawsuit by the owner of a reservoir that fails to fill after aggregation <br />or by a direct flow or storage user adversely affected by a,well call. <br />5) Option 5: Prepayment of Well Depletions. <br />i) The Task Force has not explained how this proposition would work and it is unclear how it <br />can be made to work. There has been no description of the operation of any prepayment <br />plan to the Task Force, nor have compelling examples of previous successful prepayment <br />plans been presented to the Task Force. Under the executive order, the Task Force has to <br />define the problem that prepayment would solve and def ne the means by which the solution <br />would work That has not yet been done. <br />7