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<br />'-'- <br /> <br />#J" ..... <br /> <br />agreements and how effective they may be. The New Mexico Interstate Stream Commission <br />filed comments on the draft agreement requesting that the Rio Grande Compact Commission be <br />removed as a signatory to any agreement that may be reached. <br /> <br />13. Rio Grande Well Controversv [NEW]. The State Engineer issued rules for new <br />confined aquifer wells on June 30. Protests are due on August 31. The rules find that the Rio <br />Grande basin confined and unconfined aquifers are over-appropriated. The rules will not allow <br />new confined aquifer wells unless the wells obtain a court-approved plan for augmentation <br />which meets additional standards for protecting artesian pressure in the confined aquifer. The <br />rules also require new wells to retire existing confined wells and the lands irrigated thereby in <br />order to protect surface and ground water users. Finally, the rules recognize the Rio Grande <br />Decision Support System as the appropriate tool to be used to evaluate impacts caused by <br />proposed new confined aquifer wells. <br /> <br />14. Dismissal of Application to Chanl!e Ft. Lvon Canal Companv Water Ril!hts (Case <br />Nos. 02CW183. 03CW28 and 03CW68 (Application for Chanl!e of Water Ril!hts ofWollert <br />Enterprises. Iuc. 136!!! & Colorado. L.L.c.. Hil!h Plains A&M. L.L.C.. Mal!ro. L.L.c.. and <br />ISG. L.L.C.. et al. [NEW]) <br /> <br />In response to two Motions for Determinations of Questions of Law filed by the Applicants, the <br />Division 2 Water Court dismissed the subject applications to change water rights represented by <br />shares in the Fort Lyon Canal Company. In doing so, the Court applied the anti-speculation <br />doctrine to a change of water rights application for the first time, agreeing with the objectors' <br />arguments that the doctrine's application should be extended to changes of water rights. The <br />Court noted that the Applicants are seeking "the change for virtually any use where water may be <br />necessary without identitying the specific use and/or end user. Applicants' plan is so expansive <br />and nebulous that it is impossible for other holders of water rights to determine whether they will <br />be injured. Further, there is no discernible method to determine whether the water will be put to <br />beneficial use." The Court noted that the Applicants' proposed uses deviate so much from the <br />original right that they "take on the characteristics of a new water right," and that all water userss <br />who might be injuriously affected have a right to be notified of the specific use of the changed <br />rights. Without such notice and participation, the Court would not be able to measure injury and <br />impose terms and conditions on the change. The Court also held that there was no reason to <br />distinguish between appropriated and unappropriated water in the applying the anti-speculation <br />doctrine, as the distinction would render meaningless the procedures for initial water rights <br />applications, particularly the notice requirements. The Court said: "An applicant could easily <br />circumvent the anti-speculation doctrine in the initial applica1ion by securing a water right ...[ and <br />subsequently apply for a change for uses not included in the original resume.] To permit the <br />anti-speculation doctrine to be so easily manipulated ... would play havoc with the adjudication <br />processes that have served the State well." The CWCB objected to these applications to protect <br />all of its instream flow water rights in Div. 2, given the broad nature of the proposals. Because <br />this is an issue of first impression, we anticipate that this decision will be appealed. The Board <br />may wish to discuss this matter in executive session. <br /> <br />\ <br />, <br /> <br />5 <br />