Memorandum Agenda Item 15e 01/23,24/2002

• Board Meeting Date: 1/23/2002
• Description: Board Meeting Request for Comments on Whether the Anti-Speculation docttrine applies within the Dever Basin Aquifers of the Designated Basins
• Board Meetings - Doc Type: Memo

STATE OF COLORADO
Colorado Water Conservation Board ;
• Department of Natural Resources �° ���� �A
1313 Sherman Street,Room 721 " i
Denver,Colorado 80203 � J
Phone:[phone]
FAX:[phone] '°
www.cwcb.state.co.us
Bill Owens
Governor
To: CWCB Members Greg E.Walcher
Executive Director
From: Rod Kuharich, Dan McAuliffe,Dan Merriman, Ted Kowalski Rod Kuharich
CWCB Director
Date: January 14, 2002 Dan McAuliffe
Deputy Director
Re: Agenda Item 15.e,January 23-24,2002 Board Meeting,Request for Comments on
"Whether the Anti-Speculation doctrine applies within the Denver Basin Aquifers of
the Designated Basins"
In December, 2001, we received the attached memorandum from William Fronczak
requesting comments about whether the anti-speculation doctrine applies within the Denver Basin
aquifers of the Designated Basins. This issue is currently before a Designated Ground Water Judge.
This case may be appealed to the Colorado Supreme Court, and eventually that ruling could have
implications about the Denver Basin aquifers outside of the Designated Basins. Consequently, we
• thought that you may want to have an opportunity to discuss issue.
As you know, Senate Bill 5 (passed in 1985) provided that water in the Denver Basin
aquifers would be allocated based on overlying land ownership. As such, it has been a widely held
belief that the anti-speculation doctrine either does not apply in the Denver basin aquifers, or that if
the anti-speculation doctrine applies, it is an easier standard to satisfy. The Colorado Supreme
Court, arguably, called into question this logic when it held in the Chatfield East decision:
A water right is a right of use. ...the general assembly and the courts of this state have often
reinforced the policy of keeping the public water resource available to those who can and will
use it beneficially, as opposed to those who wish to speculate in its value and price. Even
though Denver Basin groundwater is managed differently from waters of the natural stream
the Groundwater Management Act mirrors the anti-speculation, beneficial use, non-waste
precepts of Colorado Law.
While this language is almost certainly dicta, the issue not absolutely decided one way or the other.
The Staff, and Hal Simpson, will be available to answer any questions and follow-up on the Board's
decisions regarding this matter.
Attachment
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