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586. UNIVERSITY OF COLORADO LAW REVIEW [vol. 59 eas-especially in smaller tributaries to the South Platte where irriga- tion had become almost completely dependent on the use of welIs.17 Moreover,. it was widely recognized that groundwater development was. r~ducmg dIscharges to the river, thereby affecting surface flows. A slmdar pattern of rapid development of groundwater in the Arkan- sas also was underway. The need for legislative attention to this issue was obvious. IV, THE LEGAL BACKGROUND . The prior appropriation doctrine developed to govern the alloca- tlO~ of surface. water resources in the West. It is a priority system in whIch semor nghts must be fully satisfied before any junior rights can be used. The water right is established through the appropriation of water-that is, by a diversion of water and the application of that water to a beneficial use. Reliable surface flows of water in rivers like the South Platte in Colorado were fully appropriated before the turn of the century. . , The de~elop~ent of groundwater occurred slowly, accelerating ~th the avaIlablhty o~ low cost energy which made the cost of pump- mg the water economIcally attractive and with the improve ment in drilling and pumping technologies, In Colorado there was essentially no control of this development. While the appropriation of surface water was first subjected to legal control in 1879, no attempt was made to regulate groundwater development until the 19505. Colorado courts long had held that groundwater "tributary" to a surface stream ~ governed by the doctrine of prior appropriation.18 However, rela- tlvel~ few welIs had ever been adjudicated. Thus, although wells drawmg water from underground sources tributary to surface flows were subject to the priority system very few actually operated under a decreed right. . Legislation enacted in 1957 required that permits for new wells be obtained from the state engineer. 19 However, the legislation also stated that: . "The priority date of a ground water appropriation shall not be postponed to a time later than its true date of initiation by 17. Bittinger, Colorado's Ground-Water Prob/ems-Groun.d Waterin Colorado, COLO. ST. U. Ex- PERIMENT STATION BULL. SQ4...5 al 21 (1967). 18. This general principle was recognized by a Colorado court as early as 1893. McClellan v. Hurdle, 3 Colo. App. 430, 33 P. 280 (1893). It was further developed in the context of return flows in the case of Comstock v. Ramsay, 55 Colo. 244, 133 P. 1107 (1913). In Nevius v. Smith, 86 Colo. 178, 279 ~: 44 (1929), the ?>Iorado Supreme Court held that "seepage and percolation belong to the river . .. ,not the overlYing landowner. Id. at 181, 279 P. at 45. This general principle was strongly reaffinned by the supreme court in Safronek v. Lemon, 123 Colo. 330, 228 P.2d 975 (1951). 19. Ground Water Law of 1957, 1957 Colo. Sc:ss. Laws, ch. 289, ~ 5 (codified at CoLO. REV. STAT. ~ 148-18-2 (1963)). . . 1988] COLORADO LAW OF "UNDERGROUND WATJ;!{" 587 reason of failure to adjudicate such right in a surface water adjudica- tion.,,20 In 1965 the state engineer took the position that he had no authority to regulate welI pumping in order to protect surface rights.21 The legislature responded in that same year with a bill directing the state engineer to "execute and administer the laws of the state relative to the distribution of the surface waters of the state including the un- derground water tributary thereto in accordance with the right of pri- ority of appropriation. . . .'>22 Pursuant to this directive the state engineer ordered 39 welIs in the Arkansas River ValIey to cease operations because of adverse ef- fects on senior surface diverters. In Fellhauer v, People,23 the Colo- rado Supreme Court upheld the authority of the state engineer under the 1965 Act to regulate such wells in order to protect vested senior rights from material injury, but found this panicular exercise of that authority to be unsupported by any rational plan and so a violation of equal protection, The court proceeded to spelI out three requirements for any well regulation scheme: (I) that the regulation be done pursu- ant to a plan which is implemented through rules and regulations; (2) . that the regulation must, in fact, result in a "reasonable lessening of material injury to senior rights"; and (3) that an effort should be made to determine if conditions could be placed on well operation in a man- ner that would permit continued use of groundwater without material injury to senior users," By way of emphasizing its interest in encour- aging the use of groundwater the court then stated: It is implicit in these [Colorado] constitutional provisions that, along with vested nghts, there shall be maximum utilization of the water of this state. As the administration of water approaches its second century the curtain is opening upon the new drama of max- imum utilization and how constitutionally that doctrine can be in- tegrated into the law of vested rights.!S At this point it was settled in Colorado that (I) tributary ground. water was subject to the prior appropriation system, that (2) its use was to be administered in conformity with the priority system, but that (3) wells were to be regulated only if their operation caused mate- 20. COLO. REV. STAT. ~ 148-18-9 (1963), repealed by COLO. RE\". ST....T. ~ 37-9(}...109 (1973) (ef. fective May 17, 1965). 21. See Hillhouse, integrating Graund and Surface Water Use in an Appropn'ation State, 2( RocKY MTN. MIN. L. INST. 691, 697 (1975) (hereinafter Hillhouse]. 22. Act of May 3, 1965,1965 Colo. $ess. Laws, ch. 318, ~ 1. 23. 167 Colo. 320,447 P.2d 986 (1968). 24. /d. at 334, 441 P.2d at 993. ., .' ,~, .... n... I .. ".,.