Laserfiche WebLink
J. Plaintiffs are not entitled to a legal presumption of injury. <br />57. The "information" in the Compact and related Compact Litigation, rulings, Compact , <br />Stipulation and Compact Model do not satisfy Plaintiffs' burden of proving there is ground hater <br />in the NHP Basin, the pumping of which is having more than a de minimis impact on surface <br />flows in the North Fork. <br />58. Plaintiffs have not demonstrated injury to their water rights from depletions to surface <br />flows in the North Fork as a matter of law. Genuine questions of material facts preclude such a <br />finding as a matter of law. <br />59. The RRCA Model may present some evidence of injury but it is not conclusive evidence <br />of injury to the extent that the Court may find injury as a matter of law. The Commission shall <br />determine the weight of this evidence based on the facts of this case and the application of the <br />RRCA Model for purposes other than Compact accounting, if any, <br />60. The Plaintiffs continue to have the burden to prove applicability of the RRCA Model's <br />conclusions, findings and data to the facts of this case and to injury to Plaintiffs' water rights. <br />61. The RRCA Model was created and calibrated, etc. for purposes of Compact accounting. <br />Plaintiffs have the burden to prove its use for other purposes is valid: however, the Commission <br />is bound by the RRCA Model's factual findings and conclusions because the Commission <br />(through the State) has already admitted and agreed to its credibility and accuracy to a reasonable <br />degree. <br />62. Further, Plaintiff's relied on case law which referred to a presumption of injury when a <br />stream is over appropriated. Those cases do not apply, here. Thos cases involved "waters of the <br />state" that are subject to state constitutional protection. However, here, we are focused on a <br />designed groundwater basin for which. the General Assembly has prescribed a regime that differs <br />ftom Colorado's natural stream prier appropriation doctrine, See Goss, 993 P.2d at 1183- 1195, <br />1189, citing F'undingsiandv. Colorado Tearer Comm'h, 171 Colo. 487, 495, 468 P.2d 835, 839 <br />(1970). <br />63. Designated groundwater basins require management that is different from the <br />management of surface streams and underground waters tributary to such streams. Id. <br />64. Therc is a dissimilarity in the basic policies underlying the law of Colorado foe surface <br />water and for groundwater designated basins. Prior appropriation rules for surface water were <br />primarily designed and developed to protect the relative rights of senior and junior appropriators <br />in order to maximize the beneficial use of the surface water in this state. Citations or ilted. In <br />contrast, Colorado's permit system for regulation of the appropriate of water in designated <br />groundwater basins under the 1965 Act permits the full development of groundwater sources <br />while protecting against depletion of the underground aquifer. See panielson v, bergs AG, ,Inc., <br />546 P,2d 363, 370 (Colo. 1982) <br />11071 is <br />