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

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29, Defendants are correct when they state that "[C]learly, just because some groundwater in the basin is physically tributary to the surface streams, that does not mean it is automatically regarded as legally tributary and therefore disqualified from being designated groundwater," 30. The trier of fact must determine, based on the evidence presented, whether the impact on surface flows is de mihimis, Whether the impact is "minimal, trifle and/or insigaif"icarat" is a question of fact. E. The 100 -yeas test is a time - travel! test 1 V III. A, 31. Defendants also argue that the Lundvall 100 -year teat is a "time - gravel test," meaning that the test is the length of time which the water left undisturbed would reach the stream. See Defendants' Reply Brief (filed Mareh 23, 2007 P.8.4 The Defendants further argue that the Colorado Supreme Court reaffirmed the Ludvall time - travel test to determine whether the tributary character of water is de minivans in Coss 993 P.2d at 1183$4. See Defendants'Aeply Brief (filed March 23, 2007), p.10, 32. Plaintiffs take the position that the fundamental consideration of do mi€dimv.S character is the "length of tune in which the use of the wells will affect the surface stream, not necessarily . . .the length of time which the water upon being undisturbed would reach the stream," citing District 10 rater UsersAss'n v Barnett, 599 P.2d 894, 896 (Colo, 1979) (Emphasis added.) 33. The Court agrees with the Defendants. The test is one of time-travel. In addition to case law, the tune- travel test is found in the statutory definition of designated groundwater found at Section 37.94 -103 (G) (a): Designated groundwater means that ground water which in its natural course wolald not be available to and required for the fulfillment of decreed surface rights. , . (Emphasis added.) "In its natural course" contemplates that water left undisturbed will reach anti affect the stream. 34. However, the 100 -year test is not the primary focus. The primary focus is whether the groundwater in its natural course would or would not be available to and required for the fulfillment of decreed surface rights. The 100 -year test is there to help answer that question. 35. The Defendants' strongly take the position that the de minimus nature of groundwater in the bTl• P Easita has not been determined. Defendants are viewing prior case law too narrowly. Besides, .Lundvall was a NHP Basixa case. 36. Groundwater which has more than a de minimus impact on surface waters cannot prop etly be classified as designated groundwater. See Gallegos, 147 P.3d at 31. (Emphasis added) 4 Defendauts also argue in this past of their brief that Lundvad7 did not go so far as to establish 100 years travel time AS a bright line boundary. Subsequent-case law firmed ibis rule. E.g. Goss, 993 P.2d at 1182 5 For further discussion of flip, distinction between concepts, see Distrtet 10 Water Users assn' v. Barnett, 544 P.2d 894 (Colo. 1979); Sfare Ertgtneer v. Castle Meadows, Inc, 856 P,2d 496 (Colo, 1993) tuo7a 11