|
<br />.
<br />
<br />lYol. 59
<br />
<br />each year. The original unit fee in 1972 was $15; by 1986 it had in-
<br />creased to $90. To join GASP as a new member a special fee repre,
<br />senting the cumulative unit charges for each year since 1972 must be
<br />paid, In subsequent years the unit charge is the same as for other
<br />members" Membership payments are used to purchase and lease the
<br />replacement water needed to offset any injury arising from the pump-
<br />ing of member wells.
<br />The GASP program operates under authority of the Colorado
<br />substitute supply provision, S2 This provision permits a junior appro,
<br />priator to uSe water traditionally taken by a senior appropriator so
<br />long as adequate replacement water is provided. Only the approval of
<br />the state engineer is required. However, unlike a court-decreed plan
<br />for augmentation, substitute supply plans must be reviewed and ap.
<br />proved annually.
<br />The GASP approach has been characterized as "call manage-
<br />ment,"" GASP obtains rights to "replacement" water which it
<br />makes available to the division engineer and the water commissioners
<br />to use as they deem necessary. There is no clear policy governing the
<br />amount of replacement water that is needed, According to the 1974
<br />Amended Rules and Regulations for the South Platte issued by the
<br />state engineer, the amount of replacement water an augmentation plan
<br />should make available to the division engineer is to equal "5 percent of
<br />the projected annual volume of a ground water diversion. . , ,"" The
<br />Rules also state that if such replacement' is shown not to be adequate
<br />then actual stream depletions caused by a well are to be calculated
<br />using the "Glover method" or some approved variant thereof."
<br />It is evident that this so-called "five percent rule" has never been
<br />the basis for GASP's plan of operation, Nor does it appear that there
<br />has been any complete analysis of the stream depletions caused by the
<br />well, operations of GASP members.'. Instead, emphasis has been
<br />placed on developing a supply of replacement water adequate enough
<br />
<br />592
<br />
<br />UNIVERSITY OF COLORADO LAW REVIEW
<br />
<br />51. Thl1S in 1986 the fee for new members was $720 per upit. This policy is intended to recover
<br />indirect benefits GA.SP has provided lCl nonmember pumpers si.nce it started prov<<l.ing. feplacement
<br />water to the basin in 1972.
<br />52. COLO. REV. STAT. ~ 37.80-120(2) (1973).
<br />53. Rudeen, Ground Water Management in the South Platte Basin of Colorado, Proceedings of
<br />1987 Regional Meetings on Water Management. U.S. Committee on Irrigation and Drainage 313
<br />(1988).
<br />54. Sol1th Platte Rules and Regulations, supra note 45, Rule 3(1).
<br />55. South Platte Rules and Regulations, supra note 45, Rule 4(1). See also Glover, The Pumped
<br />Welt, TECHI'IICAL BULLETIl'l 100, CoLO. ST. UI'I1V. EXPERIMEt'tT STATION (September 1968).
<br />56. No baJ;is bL\ been found for the eighteen percent replacement waler llgure quoted by Slate
<br />Engin<<:r Kuiper. See supra note 48. Nor did we find this figure cited anywhere other than in th~
<br />GASP Hoard minUlt'S.
<br />
<br />.
<br />
<br />1988]
<br />
<br />.
<br />
<br />COLORADO LAW OF "UNDERGROUND WATER"
<br />
<br />593
<br />
<br />and strategically situated so as to satisfy senior appropriators. The
<br />measure of need is not some calculation of the stream depletions but
<br />the existence of a valid senior call on the river at a time when histori-
<br />cally there would have been adequate surface flows. >7
<br />As shown in Figure 3, the total supply of replacement water made
<br />available by GASP to the division engineer has increased from about
<br />12,000 acre-feet in 1973 to more than 50,000 acre-feet in 1986." A
<br />unique feature of this replacement supply is that more than half of it is
<br />itself provided by wells. Thus groundwater from new wells is used to
<br />offset depletions caused by other wells.
<br />GASP wells are used to provide replacement water directly to
<br />senior surface water rights which, because of their seniority, rate and
<br />volume of diversion, and location, historically have placed a call on
<br />the river in low flow periods. In 1973 GASP installed wells directly
<br />adjacent to the Sterling Number 1 ditch." This ditch, with its headg-
<br />ate located several miles upstream of Sterling, had an 1873 priority for
<br />114 cubic feet per second and historical diversions of 25,000 acr<>-feet
<br />per year. Calls placed by this right often extended many miles up the
<br />river forcing numerous junior appropriators to cease diversions until
<br />the call was satisfied, GASP wells now can supply more than SO cubic
<br />feet per second of groundwater directly into the ditch, thereby helping
<br />to keep the can off the river.60 Subsequently, GASP has installed wens
<br />
<br />51. In approving the South platte Amended Rules and Regulations, the Water Court (or Division
<br />One stated:
<br />To avoid a deprivation of water to SQII\C senior appropriator, ground water appropriator,
<br />shall make replacement water available for delivery as reasonably required by the Division
<br />Engill.eer, in a quantity, during a period, and at a pl&ee so as to prevent a depriva90n of
<br />water to a senior appropria\Gr caused by weh StQuM water diversion. The Division Engi-
<br />neer shall Ui!.e valid senior water calls as the normal criteria for requiring such
<br />replacements.
<br />
<br />In re South PIaUe River, Case: No. W-11119, (Water Division No.1, Colorado. March 15, 1914) re-
<br />printed ill Radosevich, 1 Colo. Water Laws IY-8(23) (1919) [hereinafter Radosevich].
<br />58. Jack Odor Engineering Services, Feb. 25, 1981.
<br />59. In 1912 when GASP was fanning, the Sterling Number I bad plaCed a call on the river that
<br />required a number of upstream juniors to (USe diversions, including the Weldon Yalley system located
<br />ups\ream of Fort Morgan, wilh its 1881 priority right to 165 cubic feet per second. Weldon Valley
<br />resisted the order to stop divertillg and demanded that (he state engineer instead shut down the more
<br />junior irrigation wells. The Division One water court upheld the state engineer's request for an injunc-
<br />tion to require Weldon Valley to close its headgate, but also directed the state engineer to regulate well
<br />pumping under his proposed regulations that limited such pumping to three: days a week. This explo-
<br />sive situation was defused by the installation of wells able to provide water sufficient to 'ktcp th'ts caU off
<br />
<br />the river.
<br />60. Control of the wells is exercised by the division engineer and the water commissioner. GASP
<br />paid for the installation of the wells and also pays for their operation and maintenance. Apparently,
<br />because of their location, most of the depletions resulting fTom theiT cpef$\\on reach the stream after.
<br />the irrigation sea.<;on. So far no injury to olher downstream appropriators appears to have resulted from
<br />the operation of these wells.
<br />
|