Colorado Water Dec 2003

• Year: 2003
• Title: Colorado Water
• CWCB Section: Administration
• Author: Water Center of Colorado State University
• Description: December 2003 Issue
• Publications - Doc Type: Newsletter

Judge McCree was a retired federal court judge who was teach-
ing at the University of Michigan Law School at that time. He
had also been the Solicitor General during the Carter Admin-
istration. The Solicitor General is responsible for all litigation
by the United States in the U.S. Supreme Court.
After Judge McCree was appointed, we had a conference in
Ann Arbor and worked out a proposed order for discovery in
the case. But, unfortunately Judge McCree was diagnosed with
cancer and died at the end of the year.
The Court then appointed Arthur
Littleworth as the Special Master in
1987. Mr. Littleworth was a very
well- respected water lawyer from
Southern California. He was 63 years
old at the time of his appointment
and, I suspect, viewed the appoint-
ment as the capstone to his career and
had no idea that the case would still
be going on 17 years later.
sas River Valley. Ground water commissioners went out into
the field to find every well that existed and placed a tag on each
one.
The State Engineer also adopted rules and regulations that
required well owners to install a totalizing flow meter on their
wells to determine how much ground water was pumped, or, if
the wells were powered by electricity, which most of the wells
in the Arkansas River Valley are, they could have it tested to
A major compromise or agreement
that was reached between water users
in the Arkansas River Basin was that
the rules would not simply address
depletions to usable Stateline flows,
but would also address the impacts of
junior wells on senior surface water
rights in Colorado.
When Mr. Littleworth took over the
case, he ruled on several pending
motions. He then decided to bifurcate the case into a "liability"
phase and a "remedy" phase so that he could first determine if
there had been any violations of the Arkansas River Compact,
and if there were, then determine an appropriate remedy.
The trial on the liability phase of the case began in September
of 1990. At that time, the lawyers in the case estimated that the
trial would last between six and twelve weeks. Ha! The trial
went on for a period of more than two years, with 160 days
of trial. The primary reason for the long trial was that one of
Kansas' experts had to withdraw. Kansas was allowed to des-
ignate replacement experts, and the trial on the liability phase
was finally completed in 1992.
The Special Master issued his first report in 1994, in which he
recommended dismissal of the claims involving the Trinidad
Project and the Winter Water Storage Program. However, on
the claim involving post- Compact well development, he found
that regardless of which State's evidence was considered, post -
Compact well pumping had depleted usable Stateline flows in
violation of the Compact.
Both states filed exceptions to the Special Master's first report,
which were argued to the Court in early 1995. The Court then
issued an opinion in May of 1995 which overruled the excep-
tions and remanded the case back to the Special Master for
proceedings consistent with its opinion. As a result of the find-
ing that Colorado was in violation of the Compact, the State
Engineer took a number of actions. The Special Master had
been critical of the fact that Colorado had very limited data on
the number of wells that existed in the Arkansas River Basin
and the amounts of ground water that had been pumped. So,
the first thing the State Engineer did after the issuance of the
first report was to conduct an inventory of wells in the Arkan-
determine a power conversion
coefficient to relate the number
of kilowatt hours used to pump
an acre foot of ground water.
Those rules were adopted in
1994 and later amended in 1996.
At the same time, Governor
Romer appointed a coordinat-
ing committee, which included
representatives of well users,
surface users, county commis-
sioners, and the Southeastern
Colorado Water Conservancy
District, to recommend what should be done in response to the
Supreme Court's decision, and how wells should be brought
into compliance with the Arkansas River Compact. The com-
mittee met on numerous occasions over the course of more
than a year, and agreed on some principles that became the
basis of rules and regulations that the State Engineer adopted
in 1995 with the intention of bringing post- Compact well
pumping into compliance with the Compact.
A major compromise or agreement that was reached be-
tween water users in the Arkansas River Basin was that the
rules would not simply address depletions to usable Stateline
flows, but would also address the impacts of junior wells on
senior surface water rights in Colorado. The Rules provided
that all well pumping in the Arkansas River Valley would be
discontinued unless the wells were included in replacement
plans. The replacement plans had to do two things: they had
to replace out -of- priority depletions to senior surface rights
in Colorado, and, for wells along the river between Pueblo
and the Stateline, they also had to replace depletions to usable
Stateline flows. In those rules, the Colorado State Engineer
provided that the hydrologic model that had been developed by
Kansas to determine depletions to usable Stateline flows would
be used to determine deletions to usable Stateline flows.
Following the Supreme Court's decision in 1995, Kansas filed
a motion for an injunction to prohibit pumping by post -Com-
pact wells until Colorado had demonstrated that the depletions
to usable Stateline flows would be replaced. The Special
Master denied the request for injunction and said that the
Colorado State Engineer was in the process of adopting rules
and regulations. He thought that Colorado should be given
a period of time to implement replacement plans to see if it
could come into compliance with the Compact. The Special