Order Granting Summary Judgement Motions in Part and Denying Summary Motions in Part

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22. Designated groundwater includes water that is not tributary to any stream and other water not available for the fulfillment of decreed surface rigbts. Use of this water has a de mihim&$ effect on any surface stream. Hobbs, Headivafers, Fall 2406, p, 26 And groundwater which has more tban a de minimus impact on surface waters cannot properly be classified as designated groundwater. Gallegos, 147 P.3d at 31. 23. De minimus non curcat lax. The law does not concern itself with trifles. Black's Law ,Diedo nary defines de nninimus as "of the least," "Wfling," "minimaI," and "of a fact or thing so insignificant that a Court may overlook it in deciding an issue or case." 24. The Colorado Supreme Court noted in Larrick P. N. Kioiva Bijou Management Dist., 514 P.2d 323 (Colo. 1973) that the water that was the subject of the case would take more than 204 years to reach the South Platte .River. The water that was the subject of KWper v. Lundvall factually took more than 100 years to reach a live stream. As a iresult, the Colorado Supreme Court then held that the "tributary character" of water taking over a century to reach the stream is de nzinimua and, as a result, "it is not park of the surface stream as contemplated by our Constitution." See Kidper v. , Lundvall, 529 P.2d 1328,1331 (Colo. 1975) 25. The titre- period of 100 years has since become a general rule. "Groundwater that tapes more than a century to reach the stream is not apart of the surface stream as contemplated by the Colorado Constitution and is not subject to the prior appropriation provisions of the Colorado Constitution." See Goss, 993 P.2d at 1182. The Colorado Supreme Court defined designated groundwater in Kuiper v. Lundvall. See Commission v. N. Kiowa -Bijou Groundwater Management Dist., 77 P.3d 62 (Colo. 2003). Under NHP Basin Rules and Regulations, 5.12.19, "stream depletion shall be determined by the RRCA Model and will extend over a 100 -yeas period." The time - period of 100 years is also found in the definition to determine aonfributary groundwater outside designated basins. See CR.S. 37 -90 -103 (10.5). Also see Section 37 -90 -107 ( 266 Plaintiffs have raised the question of application of the general rule in reverse. if groundwater pumping impacts a stream in less than 104 years, does it follow we should conclude that the pumping has more than a de minimr's impact on surface flows? Plaintiffs urge the Court to rule, as a matter of law, that if groundwater pumping impacts a stream in less than 100 years, that pumping has per se more than a de minimus impact on surface flows. 27. Defendants take the position that whether groundwater pumping has more than a de mi nimis effect oa a surface stream is a factual issue and that Lundvall leaves open the issue of whether wells pumping groundwater in the IEP Basin that would reach the stream in something less than 104 years might also have a de minimus tributary character. See Defendanfs Reply ,brief (filed March 23, 2007), p.9. 28. Groundwater that takes more than a century to reach the stream is not part of the surface stream as contemplated by the Colorado Constitution. However, it rernains a question of fact, on a case -by -cane basis, whether groumdwater pumping that impacts a stream in less than 140 years has more than a de minimis impact on surface flows. 11071 10