BOARD00902

• Board Meeting Date: 1/23/2002
• Description: Request for Comments on "Whether the Anti-Speculation Doctrine Applies Within the Denver Basin Aquifers of the Designated Basins
• Board Meetings - Doc Type: Memo

STATE OF COLORADO

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Colorado Water Conservation Board

Department of Natural Resources
1313 Sherman Street, Room 721
Denver, Colorado 80203
Phone: [phone]
FAX: [phone]
www.cwcb.state.co.us

Bill Owens
Governor

To:

CWCB Members

GregE, 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 IS.e, January 23-24, 200~ Board Meeting, Request for Comments on
"Whether the Auti-Speculation doctrille 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 lllI1d 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 aright 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 wl10 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 !lllswer any questions and follow-up on the Board's
decisions regarding this matter.

Attachment

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Flood Protection. Water Supply Planning and Finance. Stream and Lake Protection
Water Supply Protection. Conservation and Drought Planning