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<br />. <br /> <br />. <br /> <br />from University of Colorado Law Review, <br />Vol. 59, Issue 3, Summer 1988 <br /> <br />. <br /> <br />COLORADO'S LAW OF "UNDERGROUND <br />WATER": A LOOK AT THE SOUTH <br />PLATTE BASIN AND BEYOND <br /> <br />LAWRENCE J. MACDoNNELL" <br /> <br />I. Il-IRODUCTION <br /> <br />In 1969 Colorado acted to clarify its law with respect to "under- <br />ground water" - that is, the water in alluvial aquifers hydraulically <br />connected to surface waters. 1 Increasingly this so-called "tributary" <br />groundwater was becoming an important source of supply, especially <br />for irrigation.2 Yet, its development had proceeded virtually unregu- <br />lated until 1965.3 <br /> <br />. Director, Natural Resources Law Center, UniveJSity of Colorado School of Law. B.A., 1966. <br />Unive..-sity of Michigan; J.D., 1972, University of Denver College of Law; Ph.D., 1975. Colorado <br />School of Mines. <br />Most of the case study material was collected by Stephen Miller, J.D.. 1987, University of Colo- <br />rado School of Law; M.S. Candidate, Civil and Environmental Engineering, University of Colorado, <br />Boulder. His valuable research assistance is gratefully acknowledged. We also wish to acknowledge <br />the cooperation of Jack Odor, Bart Woodard, Karen Rudeen. and Tom etch in tbe case study work. <br />Review comments by Brent E. Spronk. Harrison C. Dunning, David M. Brown, Charles W. Howe <br />and Oyde Q. Martz improved the paper. <br />Tne research on which this paper is based was financed in part by the U.S. Department of the <br />Interior, Geological Survey, through the Colorado State Water Resources Research Institute. <br />I. The statutory definition of "underground water" is "water in the unconsolidated alluvial aqui. <br />fer of sand, gravel, and other sedimentary materials, and all other waters hydraulically connected <br />thereto which can influence the rate or direction of movement of the water in that alluvial aquifer or <br />natur2.l stream." CoLO. REV. STAT. ~ 37-92-103(11) (1973). <br />2. The U.S. Geological Survey has estimated that Colorado's alluvial aquifers contain lIS much as <br />157 million acre-feet of water. Cited in Martz, The Groundwater Resource, in WATER AND THE <br />AMERICAN WEST 91 (D. Getches ed. 1988). The average water flows from all surface streams in <br />Coloruio are estimated to be about 14.7 million acre-feet per year. Total avet'3ge annual depletions ace <br />estimated at about 5.3 million acre.feet per year. Getches, Meeting Colorado's Water Requirements: An <br />Ove71;.ew of the Issues, in TRADITION, INNOVATION AND CONFLICT: PERSPECTIVES ON CoLORADO <br />WATER LAW 4 (L. MacDonnell ed. 1987). <br />According to state engineer records nearly 22,(J(X) wells in Colorado provide irrigation water. <br />Communication from Richard A. Bell, Division of Water Resources (Feb. 12, 1988). Statistics com- <br />piled by the Economic Research Service indicate that wells supply about 37 percent of all irrigation <br />water used in Colorado. Economic Research Service, U.s. Department of Agriculture, Agricultural <br />Irrigation and Water Supply 19 (Agriculture Information Bulletin 532, Oct. 1987). <br />3. In 1965 the Colorado legislature passed the Ground Water Management Act. 1965 Colo. Sess. <br />Laws, ch. 319 (codified at CoLO. REV. STAT. ~~ 37-90-101 to -142 (1973 & Supp. 1987)). This Act <br />established a ground water commission and empowered it to designate ground water basins. ~velop- <br />ment of groundwater in such de:ignated basins requires approval of the commission and may be denied <br />if the commission finds that no unappropriated water is available or that the requested appropriation <br />"would unreasonably impair existing water rights from such source or would create unreasonable <br /> <br />579 <br />