Substitute Water Supply Plan Forum September 1 2004

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ti Historical Sketch regarding ground water Administration 1965 ■ The legislature passed HB 1066 which clarified that the State Engineer has the duty to administer tributary underground water in accordance with the right of priority of appropriation and prescribed adoption of rules and regulations and the issuance of orders as needed. 1968 ■ Fellhauer v. People 167 Colo. 320,447 P.2d 986, a case arising out of the Arkansas valley, interpreted the 1965 act to require adoption of reasonable rules as a prerequisite to regulation of tributary wells. 1972 On the same date in 1972, State Engineer Kuiper adopted Rules and Regulations for the protection of surface and ground water rights in both the South Platte River basin and the Arkansas River basin, to become effective on February 19, 1973. The Arkansas Rules became effective without protest on that date, however, after extensive litigation and negotiation, the parties stipulated to a set of Rules for the South. Platte on March 15, 1974. 1978 ■ Kuiper v. Atchison, Topeka & Santa Fe Ry. Co., 195 Colo. 557, 581 P.2d 293, determined that State Engineer Kuiper's attempt to amend the Arkansas Rules in 1974 was inappropriate without a basis of investigations and experience demonstrating the need to make them more restrictive on well owners. 1985 ■ The State of Kansas filed a motion with the United States Supreme Court for leave to file a complaint against the State of Colorado alleging that post- compact (195 0) well development along the Arkansas River had materially depleted usable Stateline flows in violation of the Arkansas River Compact 1996 ■ State Engineer Simpson promulgated amended Rules for the Arkansas River basin that added protection of Kansas' Compact entitlement as a basis for the amended Rules. These Rules were approved by the Division 2 Water Court and made effective in June of 1996 2001 ■ Empire Lodge Homeowner's Ass'n v. Mover, 39 P.3d 1139, established that the State Engineer's authority to approve operations pursuant to substituted supplies is more limited than previously believed and that it is the role of the General Assembly to provide amendments to statutes if additional State Engineer approval authority is desirable.