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Order Granting Summary Judgement Motions in Part and Denying Summary Motions in Part
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Order Granting Summary Judgement Motions in Part and Denying Summary Motions in Part
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Last modified
6/8/2010 9:03:26 AM
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5/18/2010 3:06:46 PM
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Water Supply Protection
Description
ARCA
State
CO
KS
Basin
Arkansas
Water Division
2
Date
7/23/2007
Author
Connie L. Peterson
Title
Order Granting Summary Judgement Motions in Part and Denying Summary Motions in Part
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a. The procedural history of this Appeal from the Commission is set forth in the <br />Court's Order Denying Defendatgts' Motion to Dismiss and order Denying Defendants' Motion <br />for Reconsideration of Order Denying Motion to Dismiss. <br />b, The Pioneer Ditch is decreed for 50 efs h'om the North Fork for irrigation with an <br />appropriation date of April 4, 1890. The Pioneer Ditch is an inter -state ditch that serves both the <br />Pioneer Irrigation. District in Colorado and a companion irrigation ditch in Nebraska. <br />C. The Laird Ditch water fight is decreed for 12 efs for irrigation with an <br />appropriation date of October 20, 2888, which is priority No. S oa the North boric. <br />d. The Compact was ratified by the respective state legislatures of Colorado, Kansas <br />and Nebraska and approved by the United States Congress and President of the United States. <br />e, Article V of the Compact expressly recognizes the 50 efs Pioacer Ditch water <br />right as binding on Nebraska and Colorado. <br />f. In 1956, more than 75 years after the Pioneer and Laird Ditch water frights were <br />appropriated and moue than 20 years after the Compact was ratified, the Commission created the <br />NHP Basin. The designation, which the Pioneer Ditch protested, occurred after a hearing that <br />lasted less than three hours. <br />g. In the Order designating the NHP Bassin, the Commission concluded that the <br />Dgallala- Alluvium aquifer in the NHP is designated ground water as defined by statute in that it <br />"is ground water which in its natural course would not be available to and required for the <br />fulfillment of decreed surface rights.." <br />b. The entire drainage basin of the North Fork is included in the NHP Basin. See <br />jPioneer frrigation,659 P.2d at 844. Moreover, the "aerial extent" of the Ogallala Aquifer <br />coincides with the aerial extent of the NHP Basin. Ruler and Reguladons for the Management <br />and Control of Designated Ground Water 2 CCR 410 -1 § 52.2.1 <br />L In 1998, Kansas initiated the Compact Litigation against Nebraska in the Urxited <br />States Supreme Court claiming excessive, pumping of ground water was causiog violations of the <br />Compact. Kansas included Colorado as a defendant because Colorado was also a Compact state. <br />j. irk ruling on a motion to dismiss, the Special Master appointed by the United <br />(Ccompact. tates Supreme Court held that "as a matter of law, the Compact restricts and allocates ... any <br />round water that would become part of the stream flow in the basin if not previously depleted <br />rough an activity of man such as pumping." See First Report Q, f Special Mmyter C' first Report "} <br />.34. Colorado had argued that the Compact allocates only alluvial ground water but not the <br />gallala ,Aquifer groundwater. Nebraska argued that groundwater was not subject to the <br />11071 6 <br />
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