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. 588 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 59 rial injury to senior rights.26 The need for a better understanding of the problem led the legislature to fund several engineering studies to examine both the South Platte and Arkansas basins.27 Strict application of the priority system in accordance with the 1965 act would have required large numbers of wells with junior pri- orities to be shut down. The agricultural economy in the South Platte and Arkansas valleys had by this time become significantly dependent on well irrigation, It was important not to curtail pumping unnecessa- riiy, but it was also important to protect senior water rights. Clearly, integration of the use of these closely related resources was necessary, In 1969 the Colorado Legislature passed the Water Right Deter- mination and Administration Act" which contained a number of pro- visions aimed specifically at facilitating the integration of groundwater and surface water, The 1969 Act begins with a legislative declaration stating that "it is the policy of this state to integrate the appropriation, use, and administration of underground water tributary to a stream with the use of surface water in such a way as to maximize the benefi. cial use of all of the waters of this state."" Water rights are still to be administered in accordance with the priority system, but with the im- portant modification that curtailments in junior diversions are to be made only when there is "material injury" to senior water rights.'o A separate section specifically addresses groundwater diversions, stating that such diversions "shall not be curtailed nor required to replace water withdrawn, for the benefit of surface right priorities, even though such surface right priorities be senior in priority date, when, assuming the absence of ground water withdrawal by junior priorities, water would not have been available for diversion by such surface right under the priority system."" This provision recognizes the fact that there is a time lag between well water withdrawals and depletive effects on surface flows. Shutting down wells may not benefit surface right holders in a timely manner. Thus wells are only to be regulated in circumstances where actual injury to senior surface rights will be avoided. 26. In addition. the Fel/hauer case clarified that it was nOI necessary to demonstrate that a specific well's operation injures a specific senior surface right, only that a "reasonable lessening of material injury to Senior rights must be accomplished by the regulation of the wells," Jd. al 334, 447 P.2d at 993. 27. See Hillhouse. supra note 21, at 700 n.25. 28. COLO. REV. ST.....T. ~~ 37-92-101 to 37-97-602 (1973 & Supp. 1987). 29. COLO. RE~. STAT. ~ 31.92.102(1)(a) (Supp. 1987). 30. CoLO. REV. STAT. i 37.92-502(2) (1973 & Supp. 1987). This provision also states that "[t]he materiality of injury depends on all factors which will determine in each case the amount of water such discontinuance will make available 10 ~uch ~nior priorities at the time and place of their need." Id. . . 1988] COLORADO LAW OF "UNDERGROUND WATER" 589 The 1969 Act also sought to encourage well owners to ~djudicate their rights, thereby bringing these rights into the administrative sys- tem. It did this by providing a three-year period during which previ- ously undecreed well rights could be adjudicated with a priority date as of the date of actual appropriation of the water.32 Many well owners also held more senior surface rights. To en- courage integration of these rights the 1969 Act authorized the state engineer to permit the use of wells as an alternate point of diversion for the surface water right.33 The state engineer and the courts were directed to use "the widest possible discretion to permit [this] use of wells. .. ."34 Finally the 1969 Act provided a more general vehicle for facilitat- ing integration called a "plan for augmentation," Defined as a "de- tailed program to increase the supply of water available for beneficial use,"" it provides a highly flexible tool enabling new uses of water without strict regard for the priority system, so long as existing rights are not injuriously affected.'6 The statute cites numerous ways this may be accomplished, including "the development of new or alternate means or points of diversion, by a pooling of water resources, by water exchange projects, by providing substitute supplies of water, by the development of new sources of water or by any other appropriate means,,,'7 Such augmentation plans must be approved by the water court.38 In a companion bill passed the same session the legislature au- thorized water users to provide a "substituted supply of water" to se- nior appropriators to satisfy their priorities.'. So long as it is of a "quality and continuity to meet the requirements of use to which the senior appropriation has normally been put,"40 the senior appropriator must accept this substituted supply.4! Approval of the state engineer but not the water court is required for such programs," Voluntary arrangements of this sort had existed previously in Colorado. Now, 32. COLO. REV. STAT. ~ 37.92-306 (1973). 33. CoLO. REV. STAT. U 37.92.102(2)(q and .301(3) (1973 &r. Supp. 1987). 34. COL.O. REV. STAT. ~ 37-92-301(3)(d) (1973). 35. COLO. REV. STAT. ~ 37-92-103(9) (1973). 36. See MacDonnell, Plans for Augmentation: A Summary, in TRADITION, INNOVAT10N, ANI; CONFL.1CT: PERSPECTIVES ON COLORADO WATER LAW 131 (1987). 37. COLO. REV. STAT. ~ 37.92.103(9) (1973). 38. COL.O. REV. STAT. ~ 37.92-301(2) (Supp. 1987). 39. COLO. REV. STAT. 937.80-120(2) (1973). 40. CoLO. REV. STAT. ~ 37.80-120(3) (1913). 41. See COI.O. REV. STAT. ~ 37.80-120(2) (1973).