WSP06480

• File Number: 8546.200
• Description: AWDI - Mailing Lists/Correspondence
• State: CO
• Basin: Rio Grande
• Water Division: 3
• Date: 6/6/1983
• Title: The San Luis Valley Groundwater Dispute
• Water Supply Pro - Doc Type: Report/Study

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the situation. They were not sufficient for
determinations of the effects of individual wells on
a case-by-case basis which, they argued, was
required by C.R.S. S37-92-501(2) and 502(2). The
result was the shifting of the burden to
individual's wells to disprove any injurious effect.

The judgment of the trial court accepted opponents policy
arguments, even though it found, in effect, that the
groundwater was tributary to the streams and that with-
drawals could affect stream flow. It ruled that
individual well-by-well determinations were required.
And, most significantly, it ruled that surface water
right users should construct wells and use the ground-
water rather than call on their ditch rights. The water
wheel doctrine, it felt, must be invoked in view of the
tremendous volume of groundwater in storage and the
effect of salvaged evapotranspiration. The Court cited
the Bender case as authority, and distinguished Well
Owners on the imaginative ground that it had held only
that existing wells were not mandated as alternate points
of diversions; it did not say that surface owners could
not be required to drill new wells. It proceeded to
suggest kinds of solutions to the overall problem of
groundwater-surface water integration in the San Luis
Valley, including salvage plans and others, although it
did not address the authority of the State Engineer to
compel such plans nor the question of who should pay for
them. And it did. not respond to the proponents' policy
argument that the realistic effect of the rules and
regulations was to require augmentation plans and not,
realistically, to cause wholesale curtailment. It did
not address the claim that the groundwater storage,
salvage of evapotranspiration and other creative
solutions in fact would be the result of such plans for
augmentation.

G.

The trial court decision has been hailed by at least one
academic observer. Frank Trelease, "Conjunctive Use of
Groundwater and Surface Water", 27 Rocky Mountain Mineral
Law Institute, 1853. Trelease characterized the holding
as a giant leap forward in its recognition that the
problem is one of reasonableness of means of diversion
and not whether the court should enforce a property right
in a specific means of diversion. Trelease went on to
concede that he viewed all agriculturalists as being
essentially on an equal footing and what was reasonable
for some could reasonably be imposed on others. We
disagree. Characterizing the problem as one of
efficiency and reasonableness of diversion means is fair
enough if one will look to the economic realities of th
whole case. Here, the very efficiencies, the advantage
of salvage and use of storage, that well owners point to
is a demonstration of the relative ease of large

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