WSP07201

• File Number: 8029
• Description: Section "D" General Correspondence - Colorado Agencies ‎(Alpha, not Basin Related)‎
• State: CO
• Date: 6/1/1962
• Author: E Jenkins, E Moulder
• Title: Ground-Water Technology and Litigation Problems, Journal of the Irrigation and Drainage Division Proceedings of the American Society of Civil Engineers
• Water Supply Pro - Doc Type: Report/Study

1H2

GROUND-WATER TECHNOLOGY

31

I
depth. In Such circumstances, an economical and productive diversion
of a very high value use might be made by a junior appropriator with
which a senior could not compete; and while the junior might well af-
ford the expense of a deep withdrawal, and even leave an adequate vol-
ume of water available for a senior, yet the expense of bringing it to
the surface would be beyond the reasonable economic reach of the lat-
ter. Such situations do not ordinarily develop with regard to surface
stream developments.
A determination of these questions is necessary. The court must determine
what, if anything, the plaintiffs should be required to do in order to make the
facilities at their point of diversion more efficient, with due regard being given
to the purposes for which the appropriation had been made, and the "economic
reach" of plaintiffs. The plaintiffs cannot reasonably "command the whole"
source of supply merely to facilitate the use of the fraction of the entire flow
to which their senior appropriation entitles them. On the other hand, plain-
tiffs cannot be required to improve their extraction facilities beyond their
economic reach.
When the dates of priorities and the rate of flow connected with each have
been established, the court should give consideration to these matters and
make such findings as shall appear to be reasonable.
Although the Supreme Court decision was more in accord with the hydro-
logic facts than that of the District Court, the writers believe that parts of
the instructions appear incompatible. For example, instruction (2) indicates
that the elevation of the water in the aquifer be the basis for restraining pump-
ing by junior appropriators. Whereas this method was used successfully be-
tween the plaintiff and the defendant for the years of 1957 and 1958, the re-
straining process would be difficult to affix if additional junior appropriators
were included. Factors that would have to be considered as variable for each
junior appropriator are rate and duration of withdrawal, distance to senior
well, and position with respect to direction of underflow.
Of particular note is the recognition by the court that the senior appropri-
ator could be damaged financially when the water table is lowered by acts of
the junior appropriators. They state that". . .adequate means for reaching a
sufficient supply. . . should be decreed at the expense of the junior appropri-
ators, it being unreasonable to require the senior to supply such means out
of his own financial resources."

CONCLUSIONS

Ground-water technology is needed to answer the many questions that arise
in regard to occurrence, movement, and effect of withdrawal of ground water.
An error in a court decision could have adverse effects on the development
of the water resources of an area.
Since the time this litigation was instigated, other changes have taken place.
The plaintiff has drilled new wells for industrial use, that are junior to the
defendant's wells. Much of the land that was used for irrigation is now being
used for housing sites. Therefore, at this time (1962) there are wells other
than those of the defendant that would have to be evaluated before an equitable
decision could be made.
This paper demonstrates that water doctrines and principles, developed
and designed chiefly for surface-water resources, are difficult and sometimes