Citation
Alluvial storage and recovery in the South Platte River basin in Colorado

Material Information

Title:
Alluvial storage and recovery in the South Platte River basin in Colorado a design approach
Creator:
McIntyre, William Charles ( author )
Place of Publication:
Denver, Colo.
Publisher:
University of Colorado Denver
Publication Date:
Language:
English
Physical Description:
1 electronic file (220 pages). : ;

Thesis/Dissertation Information

Degree:
Doctorate ( Doctor of Philosophy)
Degree Grantor:
University of Colorado Denver
Degree Divisions:
College of Engineering and Applied Science, CU Denver
Degree Disciplines:
Engineering and Applied Science
Committee Chair:
Mays, David
Committee Co-Chair:
Rens, Kevin L.
Committee Members:
Johnson, Lynn
Pal, Indrani
Wolfe, Dick
Flack, Paul

Subjects

Subjects / Keywords:
Water resources development -- Law and legislation -- Colorado ( lcsh )
Natural resources -- Law and legislation -- Colorado ( lcsh )
Genre:
bibliography ( marcgt )
theses ( marcgt )
non-fiction ( marcgt )

Notes

Review:
Issues involving the private property status of water rights and the Public Trust Doctrine, state agencies caught between science, uneven legislation and the water court process; over appropriation of a finite resource; the conflict between additional water storage structures and threatened and endangered plant and animal species; all shape the future of water resources engineering and public policy in Colorado. Surface water and groundwater administration in Colorado currently finds itself under additional operational and institutional impediments. Within the next 25 years, the current state population is expected to increase by 60 percent and climate change is predicted to decrease the usable water supply. In addition, attempts via the state ballot initiative to declare the Public Trust Doctrine as the keystone of Colorado water resource management and allocation have resulted in renewed efforts to develop strategic solutions to address these issues. With these new boundary conditions, Colorado must revisit it unique water administrative directives, its method of storing and conserving available water supplies, and develop a strategy to address the Public Trust Doctrine, while concurrently accommodating the water needs of animal and plant species as directed by the US Federal government.
Thesis:
Thesis (Ph.D.)--University of Colordo Denver. Engineering and applied science
Bibliography:
Includes bibliographic references.
System Details:
System requirements: Adobe Reader.
General Note:
College of Engineering and Applied Science
Statement of Responsibility:
by William Charles McIntyre.

Record Information

Source Institution:
|University of Colorado Denver
Holding Location:
Auraria Library
Rights Management:
All applicable rights reserved by the source institution and holding location.
Resource Identifier:
913226450 ( OCLC )
ocn913226450

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Full Text
ALLUVIAL STORAGE AND RECOVERY IN THE SOUTH PLATTE RIVER
BASIN IN COLORADO A DESIGN APPROACH
by
WILLIAM CHARLES MCINTYRE
B.S., Colorado State University Pueblo, 1973
M.S.C.E., University of Colorado, Boulder, 1975
M.B.A., Regis University, Denver, 1984
M.S.C.E., University of Colorado, Denver, 1989
A thesis submitted to the
Faculty of the Graduate School of the
University of Colorado in partial fulfillment
of the requirements for the degree of
Doctor of Philosophy
Engineering and Applied Science
2015


2015
WILLIAM CHARLES MCINTYRE
ALL RIGHTS RESERVED


This thesis for the Doctor of Philosophy degree by
William Charles McIntyre
has been approved for the
Engineering and Applied Science Program
by
Kevin L. Rens, Advisor
David Mays, Chair
Lynn Johnson
Indrani Pal
Dick Wolfe
Paul Flack
April 23,2015
11


McIntyre, William Charles (Ph.D., Engineering and Applied Science)
Alluvial Storage and Recovery in the South Platte River Basin in Colorado -
A Design Approach
Dissertation directed by Professor Kevin L. Rens.
ABSTRACT
Issues involving the private property status of water rights and the Public Trust
Doctrine; state agencies caught between science, uneven legislation and the water court
process; over appropriation of a finite resource; the conflict between additional water
storage structures and threatened and endangered plant and animal species; all shape the
future of water resources engineering and public policy in Colorado.
Surface water and groundwater administration in Colorado currently finds itself
under additional operational and institutional impediments. Within the next 25 years, the
current state population is expected to increase by 60% and climate change is predicted to
decrease the usable water supply. In addition, attempts via the state ballot initiative to
declare the Public Trust Doctrine as the keystone of Colorado water resource
management and allocation have resulted in renewed efforts to develop strategic
solutions to address these issues.
With these new boundary conditions, Colorado must revisit its unique water
administrative directives, its method of storing and conserving available water supplies,
and develop a strategy to address the Public Trust Doctrine, while concurrently
accommodating the water needs of animal and plant species as directed by the US
Federal government.
m


This research effort evaluates and proposes an engineering design, law and policy
initiatives, and conjunctive use reforms due to the impending challenges facing water
resources management, policy, and administration in the South Platte River basin of
Colorado.
The form and content of this abstract are approved. I recommend its publication.
Approved: Kevin L. Rens
IV


DEDICATION
This journey is dedicated to my son Keith and daughter Erin, who are my pride, joy, and
inspiration.
v


TABLE OF CONTENTS
CHAPTER
I INTRODUCTION 1
II ELEMENTS OF WATER RESOURCES 11
ADMINISTRATION IN COLORADO
III JUDICIAL RESPONSIBILITIES IN COLORADO 29
WATER RESOURCES AND
THE PUBLIC TRUST DOCTRINE
IV FLOW THROUGH POROUS MEDIA,
AQUIFER STORAGE AND RECOVERY (ASR),
AND A CASE STUDY 71
V CONCLUSIONS AND RECOMMENDATIONS 130
REFERENCES 135
APPENDIX
A - Glossary of Water Law, Administration, and 141
Legal Terms
B- State Engineers Statutory Authority 150
C - Federal Environmental Laws and Colorado Water
Law 152
D - Timeline of Colorado Groundwater
Well Regulation 167
E - International and Interstate Documents Affecting
Colorados Use of Water 174
F - Water Administration in California, New Mexico,
and Wyoming 193
G - MODFLOW Graphical Output 205
vi


LIST OF FIGURES
Figure
1 Colorado Historical Average Annual Stream Flows (Co. DWR) 14
2 Unit Water Released from an Aquifer Under a Unit Head in
Decline (McKinney, 2014) 76
3 Relationship between Porosity, Specific Yield, and Specific
Retention for a Range of Soils (McKinney, 2014) 77
4 Darcys Experiment Schematic (McKinney, 2014) 77
5 Darcys Experimental Results Illustrating Value of Hydraulic
Conductivity K, is a Constant for a Given Material
(McKinney, 2014) 78
6 Hydraulic Conductivity Lecture Slide (McKinney, 2014) 78
7 Hydraulic Conductivity for a Variety of Soil Types -
(McKinney, 2014) 79
8 Illustration Showing the Constant Nature of
Hydraulic Conductivity K (NRCS, 2014) 80
9 Two Section Views of Underground Dams (Ishida et al, 2011) 84
10 Section Views of ASR Configurations (Martin et al, 2005) 85
11 ASR Projects in Brazil and Kenya (Foster et al, 2004) 89
12 ASR Projects in Brazil and Kenya (Foster et al, 2004) 89
13 Section Views of ASR Examples (Foster et al, 2004) 91
14 Mississippi Valley Alluvial Aquifer (USGS) 92
15 Drawdown Curves from Three Wells in Arkansas in the
Mississippi River Alluvium (USGS) 93
16 Ogden, Utah Schematic Illustrating the Drainage Basin,
Adjacent to the Great Salt Lake (USGS) 93
17 Pilot Infiltration Basin (USGS) 94
vii


18 Santa Clara Water District (Ingebritsen et al, 1999) 95
19 Santa Clara Water District (Ingebritsen et al, 1999) 95
20 Graph of Historic Land Subsidence (Ingebritsen et al, 1999) 96
21 Santa Clara Valley Water District Water Recharge Facilities
(Ingebritsen et al, 1999) 97
22 Depths to Water in Santa Clara Valley since about 1915
(Ingebritsen et al, 1999) 98
23 South Platte River Alluvium (CWCB, 2006) 105
24 Brighton, Colorado Weather Data 107
25 River Calls Affecting District 2 Location of Case Study 113
26 The South Platte River between Northeast Denver and Brighton 118
(Picture from Google Earth)
27 Case Study Site located east of the South Platte River South of 119
Highway 7 (Picture from Google Earth)
28 Case Study Site looking South Southeast (photo by author) 119
29 Case Study Site near the South Platte River -
(Photo taken 1/18/2015 at 11:30am, by author) 120
30 Aerial of the Case Study Site with Soil Contours (USD A) 120
31 Slide20.gpr MODFLOW results Injection Wells with
Qin = 2 cubic feet per second (cfs) 205
32 Slide30.gpr Results Injection Wells with Qin = 5 cfs 205
33 Slide40.gpr Reverse Spillway with Qin = 7 cfs 206
34 Slide50.gpr Reverse Spillway with Qin = 5 cfs,
stores 51 acre-feet at 5 days 206
35 Slide60.gpr Reverse Spillway with 6 cells and
Qin = 5 cfs and Dispersion Piping Qin = 5 cfs
viii
207


36 Slide80.gpr Pump Out Scenario Dry Cell at 50 acre-feet pump out point 207
37 Slide90.gpr Pump Out at 1 cfs 35 days to get dry cell 70 acre-feet pumped 208
38 Slide 115.gpr Optimum Piping Configuration Qin = 5 cfs 208
39 Slidel61.gpr Six Pumps @ 2 cfs/ea pumping out cells 209
IX


1
2
3
4
5
6
7
8
9
10
11
83
87
88
99
100
101
102
106
110
111
116
LIST OF TABLES
Listing of Alluvial Storage and Recovery Projects World Wide
(Ishida et al, 2011)
Recharge Advantages and Disadvantages to Deep Aquifers
Using Wells (Martin et al, 2005)
Recharge Enhancement Using Infiltration Basins Advantages
and Disadvantages (Martin et al, 2005)
Summary of Various ASR Projects in the US -
(Brand, 2008)
Brown Report Lessons Learned (Table 1) (Brown, 2006)
Brown Report Lessons Learned (Table2) (Brown, 2006)
Brown Report Lessons Learned (Table 3) (Brown, 2006)
Available Storage Capacity South Platte River Basin
Alluvial Aquifer Region (CWCB, 2006)
Benefit/cost Analysis for ASR Project at Brighton, Colorado
Surface Reservoir Construction Costs
Reusable Effluent at Brighton Monthly Excess Total
For Water Year 2014
x


CHAPTERI
INTRODUCTION
The population of the northern Front Range area of Colorado is projected to grow
1.9% per year for the next five years and by 2040, the statewide population is expected to
expand from the current figure of 5 million to 8 million (a 60% increase). (DeGroen,
2012) According to the Colorado State Engineer, of the 100 million acre-feet of water
created annually by precipitation within the state boundaries, 84 million acre-feet is
consumed by forests and native vegetation, 10 million acre-feet is allocated to other states
via interstate compacts, and only 6 million acre-feet of water remains to satisfy the needs
of people of Colorado. (Wolfe, 2014)
Surface water and groundwater administration in Colorado, which operates under
the specifications of the prior appropriation doctrine, state statutes, and common law
generated by the Colorado judiciary, currently finds itself under additional unforeseen
constraints. In 1956, a proposed water storage project in western Colorado, Echo Park
Dam, was the first notable project denial based upon environmental concerns. This dam
was proposed to be constructed within a designated national monument (Dinosaur
National Monument). Although dinosaur tracks and relics would not be affected by the
dam, a portion of the monument would have been flooded. (Limerick, 2012).
During the late 1960s and 1970s, passage of the following Federal laws has
decreased the probability of large dam building along the navigable waters of the South
Platte River in Colorado. Those laws include:
The Wilderness Act of 1964,
The Wild and Scenic Rivers Act of 1968,
1


The Clean Air Act of 1970,
The National Environmental Policy Act of 1970,
The Clean Water Act of 1972,
The Endangered Species Act of 1973, and
The Federal Land Policy and Management Act of 1976. (Ibid. p. 176)
The South Platte River basin in Colorado is home to the largest human population
centers (Ft. Collins, Denver metro area) in Colorado and the largest agricultural water
usage. The Denver Water Board is the largest supplier of domestic water in the Denver
metro area. The Water Board began its strategic plan of securing water rights in the late
1800s and found itself, in the 1980s with too much water and no place to store those
supplies. On November 23, 1990 EPA Administrator William Reilly, who was appointed
by President George H.W. Bush, vetoed the Two Forks project under the authority
granted by Section 404 (c) of the Clean Water Act. (Ibid., p. 199) The need for water
storage, however, has not diminished. The era of large dam construction on the South
Platte River is probably over, therefore new means and thinking of storing large
quantities of legally available water, is now a critical component of long-term water use
planning on local, regional, and State levels.
This research effort will evaluate current legal doctrine; proposes an engineering
design, conjunctive use alternatives, and policy reforms due to the impending shortages
in the availability of water resources in the South Platte River basin of Colorado. The
conclusions may also apply to other western areas of the U.S. that are predicted to
experience similar hydrologic conditions and constraints.
2


There are present and future needs to store water, but they must be accomplished
without building large Two Forks size (1,000,000 acre-feet) above ground water storage
vessels on navigable streams. One method maybe available to accomplish this task: (1)
Subsurface South Platte River (and its tributaries) alluvial groundwater storage.
Revised legal and innovative engineering methodology of managing the 10
million acre-feet of potential underground alluvial storage in the South Platte River basin
are the key to future co-existence with the overarching environmental statutes under the
purview of the Federal Government and the ability for Colorado to be the steward of its
own surface and groundwater resources.
Various segments of state governance are responsible for the overall stewardship
of Colorados finite water resources. Of the three branches of Colorado state
government, including the legislative branch, the judicial branch (including the State
Supreme Court and the seven regional water courts), and administrative branches
(including the Division of Water Resources and the Colorado Water Conservation
Board), who is best suited to provide the expertise, judgment, and management necessary
to sustain the states water resources?
The dissertation examines this question by discussing gaps in the knowledge,
presenting the state of the art and alternative water storage methodology, and a design to
assist Colorado in meeting its ever-increasing water demands under the prior
appropriation doctrine. For those western states that share similar water supply and
allocation systems and issues of water demand versus supply, this dissertation and its
findings can apply as well.
3


This dissertation contains Appendixes A through G. The topics sequentially
include; Glossary of Water Law, Administration and Legal Terms; State Engineers
Statutory Authority; Federal Environmental Laws and Colorado Water Law; Timeline of
Colorado Groundwater Well Regulation; International and Interstate Documents
Affecting Colorados Use of Water; Water Administration in California, New Mexico,
and Wyoming; and MODFLOW Graphical Output.
Background of the Problem
The Governor of Colorado, John Hickenlooper, directed the Colorado Water
Conservation Board to develop a statewide water plan by December 31, 2015. This
document will be Colorados first comprehensive attempt at developing such a document.
A critical component of this analysis was the development and implementation of
regional roundtable discussions to elicit citizen input. There have been over 800 such
roundtable sessions since 2005. (Bartels, 2014) As evidence of standing in this overall
process, on Wednesday February 12, 2014, three state legislators walked out of a joint
House and Senate agriculture committee hearing, when two administrative agency
leaders discussed their concerns over a proposed bill (Senate Bill 115) granting the
legislature veto power over the State Water Plan. Ibid. Colorado Representative Jerry
Sonnenberg of Sterling, Colorado stated, We have three branches of government, and
its important that the legislature be involved in a statewide water plan Ibid. In an
effort to remove politics from the process, the opposite occurred. Therefore, this episode
raises the question, which of the three branches of Colorado government is/are best suited
to develop such a plan and which, if any, should have veto power? This dissertation will
explore this dilemma by examining each of these branches of government, its history,
4


authority, and current standing as to influence in Colorado water administration and
policy. The water storage methodology developed by this research can aid policy makers
in water master planning efforts.
The structure of this dissertation includes analysis of the three branches of
Colorado state government and governance as they relate to water resources, allocation
and administration. As identified in this section and the literature review, presented in
Chapter 2, there are unresolved issues, conflicting and overlapping responsibilities within
state government. These unresolved issues linger, while the water supply needs of
Colorado citizens are predicted to increase. In addition, the Federal governments
environmental laws may prove problematic when incorporating an increasing population
and decreased water resources resulting from climate change.
Statement of the Problem
The U.S. Department of the Interior 2011 Climate Study predicts within the
southwest United States, due to climate change, a reduction of snowfall/rainfall/runoff
event intensity and an increase in average temperature resulting in spring runoff
beginning two weeks sooner. This decrease in anticipated runoff will compete directly
with Colorados predicted population expansion of 3 million citizens. In addition, the
corresponding increase in water demand will compete with the net 6 million acre-feet of
usable streamflow annually that the Colorado State Engineer estimates is available to
satisfy domestic, industrial, agricultural, municipal and other water dependent demand.
There is currently the potential, via the ballot initiative process, for the citizens of
Colorado to vote and adopt a Public Trust Doctrine relative to water policy and
administration. This action, if adopted, would fundamentally change Colorado water
5


doctrine. This dissertation examines the fundamentals of public trust doctrinal water
policy via a review of Californias water policy, which includes a public trust component.
The Colorado Water Conservation Board (CWCB), in 1973, was authorized by statute to
establish, maintain, manage, and purchase water rights for maintaining in stream flows to
the extent necessary to enhance aquatic species. (CWCB, 2013) This dissertation offers a
proactive methodology, by incorporating existing CWCB authority such that policy
formulators of Colorado could expand and adopt, to preclude the necessity of a formal
public trust doctrine being required via the ballot initiative process. The new alluvial
storage methodology could provide for storing surface water that would otherwise leave
the state. This storage could assist CWCB in maintaining its in stream flows.
The era of large above ground dam building projects is probably over in the South
Platte River basin, because of the decision not to issue permits to construct Two Forks
dam, located southwest of the Denver metro area. These permits were not issued due to
non-compliance with the Clean Water Act. (Limerick, 2012) An alternative method of
storing surface water is needed. Finding additional legal storage vessels would assist
endangered species mitigation and/or supply needs of a growing population. This
dissertation will explore one alternative and its implementation.
The CWCB estimates there are 10,000,000 acre-feet of water storage capacity in
the stream alluvium of the South Platte River and its tributaries. (CWCB, 2007) Onder
and Yilmaz (2005) have modeled, using MODFLOW, several examples of underground
water storage projects including sand dams and underground dams. They have found
these water storage facilities to reduce evaporative losses, the stored water is available for
6


long periods of time, are less susceptible to pollution and health hazards, and the land
above can be used for other purposes. Ibid.
Ishida, et al (2011), have identified twenty-two subsurface dams in Japan, six in
Korea, six in China, four in India, two in Ethiopia, five hundred in Brazil, five hundred in
Kenya, and two in the U.S.A. Ishida reports the technical Committee on Groundwater
Dams in the International Commission on Large Dams (ICOLD) are preparing guidelines
for the development and use of underground dams. The member countries of ICOLD
include Brazil, China, Macedonia, India, Iran, Japan, Korea, Morocco, Nigeria, Slovakia,
Thailand and the United States. In order to store water in the alluvium of any Colorado
tributary stream, there are legal constraints restricting such water storage, however, with
the correct remedies, such storage is possible. Such a design remedy is presented in this
dissertation.
Purpose of the Study
Water policy formulation, administration, and oversight of Colorados water
resources are the purview of the states three branches of government. However, there are
examples of misuse or expansion of assumed authority. Leonhardt, (1995), discovered
in the history of a particular opinion by the Colorado State Supreme Court, the majority
had written a preliminary opinion that stated Colorado was, in fact, a Public Trust
Doctrine state. However, not for the inteijection of Chief Justice Malarkey, the opposing
opinion holder, Colorado would have been declared a public trust state. Furthermore, for
twenty-nine years, the State Engineer annually signed and administered hundreds of
temporary changes in water rights without judicial review, that in December 2001, the
Colorado Supreme Court found was not a correct interpretation of the statutes. In 2014, a
7


senate bill was introduced that would give the legislature, veto power over a state water
plan, when the governor had assigned that responsibility to the CWCB. Whether labeled
judicial intervention or activism, legislative overreach, or administrative agency
discretion of legislated duties, water policy in Colorado especially during times of
climate change requires increased cooperation, teamwork, and mutual respect among the
agencies.
This dissertation intends to illuminate the following gaps in the knowledge. First,
no methodology exists to mitigate endangered species in the South Platte River basin by
using subsurface water storage, during periods of climate change and predicted reduced
flood inflows. With the Colorado Water Conservation Board estimating 10,000,000 acre-
feet of alluvial water storage is possible in the South Platte River basin, no methodology
has been designed to store water in stream alluvium without the aid of electrical or gas
powered pumping systems for the stream inflow component.
Research Questions
Does Colorado have an obligation to adopt the Public Trust Doctrine, as
California and Oregon have done? Are there differences in the state constitutions of
those two states and Colorado, which would infer adoption of the Public Trust Doctrine is
counter to existing judge made law (common law) or statute?
Are there areas along the South Platte River basin where alluvial storage and
recovery (ASR) is an option to surface water storage due to the nature of the subsurface
materials? Also, what is the present day status of alluvial groundwater storage, both in
the United States and worldwide and can any of these technologies be applied to the
South Platte River basin in Colorado.
8


Significance of the Study
The predicted increase in population in Colorado by 3 million by 2040 and a
decrease in water supply resulting from climate change requires innovative and specific
solutions to enable both to occur without significant impact to the human condition in
Colorado. By offering public trust doctrine strategies, conjunctive use alternatives, a new
design for alluvial groundwater storage, these elements will contribute to and enhance
Colorados Water Plan to be completed by the end of 2015.
Public Policy Civil Engineering Interface
The American Board of Engineering and Technology (ABET) recognized the
need to integrate public policy into civil engineering education and in 2008, ABET
(2012) revised the Program Criteria for Civil Engineering (CE) included in the Criteria
for Accrediting Engineering Programs.
A survey was forwarded to 224 accredited civil engineering programs throughout
the United States, to which 57 departments, or 25% of all accredited programs,
responded. The survey found most departments typically include basic concepts in
management, business, public policy, and leadership into capstone courses.
Unfortunately, the survey found overall, few civil engineering departments are executing
or planning changes in response to the ABET call for more substantive inclusion of
public policy principals into course curricula. Ibid.
Before the 2008 survey, an ABET criteria modification in 2000, proposed
engineering design to include considerations of environmental, health, safety, ethical,
social and political impact on engineering design. Barry Hyman (2003), a Professor of
9


Mechanical Engineering and Public Affairs at the University of Washington, researched
the public policy-civil engineering curricula relationship as called for by ABET.
Hyman (2003) states:
In the last several decades, vastly increased public sensitivity to the
impacts of technology has fostered the concept that engineering should
consider societal concerns as part of the design process. Many of these
social concerns have been articulated as public policy decisions that have
become engineering design criteria.
Characklis (2003) highlighted the relationship between water resources
engineering and public policy and found the strong influence of public policy relative to
research differentiates it from other engineering disciplines, because water resource
solutions often satisfy a regulatory objective.
This dissertation presents the intersection of engineering and public policy
research, with the intent of finding a technical solution to a societal and environmental
problem.
10


CHAPTER II
ELEMENTS OF WATER RESOURCES ADMINISTRATION IN COLORADO
This chapter of the dissertation examines several facets of water resources
administration, policy formulation, and judicial involvement. By performing this detailed
research, gaps in these subject areas are discovered, presented and discussed. The three
general areas of research include water administration via the statutorily created Colorado
Division of Water Resources, the Colorado judicial component, including the water
courts and Colorado Supreme Court, and finally, the statutes and water policy generated
by the Colorado legislature. The sustainability of water supply and the systemic conflict
between the three branches of Colorado state government, present continued uncertainty
in effective water policy and management. The first subsection of this chapter, presents a
discussion of the role, structure, and responsibilities of the Office of the State Engineer.
Structure and Function of the Colorado Division of Water Resources
The Colorado Division of Water Resources (CDWR) is charged with
administering the States waters, both surface and groundwater. For over 35 years, water
commissioners under the supervision of Division Engineers and the State Engineer have
administered decrees of the court, in accordance with many diverse legal directives
contained in Title 37 of the Colorado Revised Statutes and others. The CDWR annually
administers over 170,000 water rights for over 47,000 structures (Wolfe, 2013). In
addition, the SEO through the seven Division Engineers (one for each major stream,
including its tributaries), annually completes 450,000 observations of structures and
records 30,000 water diversions and storage releases. As required by statute, the Division
Engineers provide 1,000 water court consultations on proposed water court applications
11


annually and the SEO also evaluates and generates 200-300 substitute water supply plans
(aka replacement plans) per year (essentially temporary augmentation, changes in use
plans). The State Engineer is also responsible for the administration of 2,900,000 acre-
feet of annual pumping from over 270,000 production water wells.
Other legislated responsibilities include: Public Safety water well construction
inspection; Interstate Compacts, Satellite Monitoring, Ground Water Well Permitting,
Litigation Services, Decision Support Systems, and Public Information Services. These
responsibilities are carried out by approximately 250 professional engineers, geologists,
information technology professionals, technicians and support staff. The Division
Engineers are located in Greeley (Water Division 1), Pueblo (Water Division 2), Alamosa
(Water Division 3), Montrose (Water Division 4), Glenwood Springs (Water Division 5),
Steamboat Springs (Water Division 6), or Durango (Water Division 7).
The mission of CDWR is to distribute water in accordance with statutes, decrees,
and interstate compacts with the constraint that approximately 2/3rds of the Colorados
water must exit the state to meet interstate compact obligations. In addition, the public
safety is also a legislated mandate assigned to the DWR and is ensured by periodic dam
and well construction inspections as well as maintaining and providing accurate and
timely information concerning the states waters.
Although the State Engineer administers the water within the states boundaries,
some US federal agencies are at times, both in concert and conflict, with Colorados
constitutional assignment of appropriating the States waters. Colorado Constitution
Article 16, declares water to be property of the citizens of Colorado (subject to
appropriation and adjudication). The complexity of this arrangement is challenging even
12


more, with changes in climate. This dissertation will not explore the causes of climate
change; however, the ramifications on Colorado state laws, and those of the US
governmental agencies, including the US Fish & Wildlife Service, and the US
Environmental Protection Agency, will be examined.
For example, within Colorado there are currently 16 animal species listed by the
US Fish & Wildlife Service, as either endangered or threatened. In addition, there are
currently 16 plant listings as either endangered or threatened (EPA, April 16, 2013).
Colorado water managers, legislators, the executive and judicial branches should be
concerned about this current standing on plants and species within the states boundaries.
However, solutions may not be as obvious. An engineering proposal will be offered to
place Colorado in a better defensive position to react proactively to the overarching
authority of the Federal government.
The responsibilities of the State Engineers Office are varied and complex. For
example, APPENDIX B lists the thirty-one (31) statutes governing the daily requirements
of water administration in Colorado (Colorado Revised Statutes, 2014). The underlying
guidance that focuses oversight by the State Engineer, is to maximize the beneficial use
of the States waters, both surface and groundwater and to administer decrees of the
courts.
The specific authority granted to the State Engineer and the various
technical/scientific/engineering expertise needed by the State Engineer and staff
personnel to achieve the overall goal of maximizing the beneficial use of the states
waters, both surface and ground water are contained in the 31 statutes mentioned
previously. The Colorado Division of Water Resources is the central state agency, on
13


behalf of the directives (statutes) of the Colorado legislative branch of government, to be
assigned these rigorous responsibilities of administering the States surface and
groundwater. The Colorado Ground Water Commission administers designated basin
and the Board of Examiners administers water well contractors and pump installers.
To illustrate the varied hydrologic characteristics of Colorado, Figure 1 depicts
the average annual flows on the streams that leave the state.
COLORADO
HISTORICALAVERAGE ANNUAL STREAM FLOWS
H0.7M
I'rvpnrwl by Ihc HydniRntphic Branch {2011 Revhionl OFFICE OF THE STATE ENGINEER
jail valui-\ In acre feel (AF)| COLORADO DIVISION OF WATER RESOURCES
Figure 1 Colorado Historical Average Annual Stream Flows
Note the majority of flow leaves the state in the Colorado River basin, whereas
the majority of the state population is on the east slope in both the South Platte River and
the Arkansas River basins. APPENDIX E is a compilation of the nine interstate
compacts in which Colorado is a party and two other interstate water agreements and
summary comments that apply to each.
14


The following sections of this dissertation offer a summary of the prior
appropriation doctrine and riparian doctrines. The riparian doctrine typically applies to
states east of the Mississippi River, however, a few western states have adopted portions
of the doctrine.
Colorado Water Administration under the Prior Appropriation Doctrine
To appreciate Colorados water administration procedures and its complexity, a
basic understanding of the prior appropriation doctrine is fundamental. The Basic
Tenants section, following this section, contains a detailed listing of characteristics
specific to the prior appropriation doctrine. This doctrine applies to nine western states
including (Getches, 2009):
1. Alaska
2. Arizona
3. Colorado
4. Idaho
5. Montana
6. Nevada
7. New Mexico
8. Utah, and
9. Wyoming,
In the above states, the annual rainfall is insufficient to supply for agricultural
needs. It should be noted that in Colorado, the judicial branch of government, through
the water courts issues all water decrees, unless appealed to the State Supreme Court
where common law is generated. In the other eight prior appropriation states, the State
15


Engineer issues all water permits/decrees. Colorado and Montana are the only states in
the United States where water adjudications are the specific legal responsibility of the
State judiciary. Ibid. This fact appears to conflict directly with the intent of
administrative law, which illustrates the relationships between the three branches of
government, namely, the legislative (and its agencies), the judiciary, and executive.
However, this apparent conflict is not the purpose of this present research.
In addition, in Colorado, groundwater well permits in the Denver Groundwater
Basin, which includes an area between Greeley on the north, Colorado Springs on the
south, Limon on the east, and Golden on the west, are issued based on land ownership.
There are ten other western states that use a combination prior appropriation
/riparian doctrine mix and are referred to as the hybrid system. Those states include:
1. California
2. Kansas
3. Mississippi
4. Nebraska
5. North Dakota
6. Oklahoma
7. Oregon
8. South Dakota
9. Texas, and
10. Washington
16


Basic Tenants of the Prior Appropriation and Riparian Doctrines
To aid in the understanding prior appropriation doctrine basics, the following
summary points on the doctrine key points, was taken from (Getches, 2009).
The prior appropriation doctrine was developed to service the practical demands
of nineteenth water users in the western United States. (Getches, p. 77)
Most appropriation jurisdictions consider water to be a public resource owned by
no one. (Ibid.)
The typical elements of a valid appropriation are: intent to apply water to a
beneficial use; an actual diversion of water from a natural source; application of
the water to a beneficial use within a reasonable time. (Getches, p. 78)
If disuse is intentional, it may be construed as abandonment. (Getches, p. 79)
Most statutory schemes require water users to have permits. In Colorado, a water
court issued decree is necessary. (Getches, p. 80) Colorado is the only western
prior appropriation state, when dealing with surface water, where a permit is not
issued by the State Engineer.
Some state courts have held that states have a public trust obligation not to
allow water to be used inconsistently with public purposes. (Ibid.)
Asa general rule, private persons do not own water in its natural state. Most
states declare that water belongs to the public or the state. (Getches, p. 86)
The right to divert water and to use it beneficially is called a usufructuary right,
as opposed to a possessory right. (Ibid. 86)
In most states, the holder of a right can, without loss or priority, transfer it to be
used for a different purpose on another parcel of land. Also, the right can be sold
17


to another party who can change the use if other appropriators will not be injured.
(Getches, p. 87)
States have a special interest in assuring that water, as a public resource, is
devoted to purposes consistent with the public good. Therefore, there is the
requirement the water be applied to a beneficial use. (Getches, p. 92)
The doctrine of relation back allows and appropriator to perfect a water right with
a priority date as of the time the intent to appropriate was first formed. (Getches,
p. 93)
Colorado law provides for conditional decrees that hold rights to a particular
quantity of water for a specific future use. (Getches, p. 95)
Plans, but no firm contracts, to sell either surface or groundwater to growing cities
are not sufficient to show intent to appropriate, but constitute only speculation.
(Ibid.)
Several states no longer require an actual, physical diversion from the stream.
Several states have embraced a trend allowing instream appropriations of water.
(Getches, p. 102)
Most states now have accepted recreation as a beneficial use. (Getches, p. 106)
Priority is the essential feature of the doctrine of prior appropriation. A senior
cannot change an established use to the detriment of a junior. (Getches, p. 109)
A senior cannot change the place of diversion if it adversely affects a junior.
(Ibid.)
States are beginning to be more rigorous in imposing regulations that prevent
polluting, wasteful, or inefficient uses. (Getches, p. 110)
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A senior cannot enforce a water right if a junior can prove that the senior would
not put the water to a beneficial use. (Ibid.)
The water of natural lakes and ponds ordinarily is subject to appropriation by state
law. (Getches, p. 116)
Imported or foreign water, e.g. from transbasin diversions, is not part of the
stream and this not subject to appropriation. (Getches, p. 118) An importer can
stop importing water at any time. (Getches, p. 119)
Instream flows can receive some protection under the federal Wild and Scenic
Rivers Act. (Getches, p. 123)
In Colorado, a Water Quality Control Commission regulates water quality and is
prohibited by statute from interfering with the exercise of water rights. (Getches,
p. 126)
Adjudications of all existing rights throughout large watersheds are now
underway in Arizona, California, Idaho, Montana, New Mexico, and Washington.
(Getches, p. 128)
Appropriative rights extend only to beneficial use, and therefore there is no right
to use water wastefully. (Getches, p. 129)
A reasonably efficient means of diversion does not usually require a party to
line its ditches. (Getches, p. 134)
Colorado was the first state to provide special court proceedings for water rights
controversies, and retained a judicial system and charged it with administrative
functions. (Getches, p. 164)
Riparian Doctrine
19


The riparian doctrine applies to states that typically have sufficient rainfall for
most agricultural needs. A full discussion on riparian water rights is not practicable in
this setting; therefore, a bullet approach will be used to highlight the more critical
components of this water rights allocation regime. This information is taken from the
Getches treatise and the referenced page number will append as appropriate.
Twenty-nine states have water rights allocations based on the riparian doctrine.
(Getches, p. 16)
Elements of riparian allocation can be traced to precedents from both France and
England, but it is essentially an American doctrine. (Getches, p. 17)
After the Revolutionary War, each state started to develop its own case law
related to water allocation. (Getches, p. 19)
With the industrial growth of the nineteenth century America, large mills
required water reservoirs for storage, and irrigation and industry diverted away
from the streams. The idea of preserving the natural flow of the stream was
rendered obsolete by the need to alter the stream to maximize water use.
(Getches, p. 20)
Today all riparian states have adopted some variant of the reasonable use
doctrine, and nearly all have statutory permit schemes, which is divergent from
the original riparian doctrine. (Getches, p. 21)
To have riparian rights, a landowner must own property adjacent to a waterbody
that fits the definition of a watercourse. (Getches, p. 24)
In the eastern United States, the courts generally require that a stream flow all
year to constitute a water course. (Getches, p. 25)
20


No such riparian rights accrue to a landowner of property adjacent to a waterbody
if the source is diffused surface waters. These waters usually come from the
runoff of rains or melting snow, and generally flow intermittently without a
defined channel. (Ibid.)
A lake is also a watercourse subject to riparian rights. (Ibid.)
The rights of owners of land riparian to an artificial stream or lake are not
controlled by riparian doctrine. (Getches, p. 29) The owners rights include:
o The right to the flow of the stream:
o The right to make a reasonable use of the waterbody, provided reasonable
uses of other riparians are not injured;
o The right of access to the waterbody;
o The right to fish;
o The right to wharf out;
o The right to prevent erosion of the banks;
o The right to purity of the water;
o The right to claim title to the beds of non-navigable lakes and streams.
(Getches, p. 34)
Generation of electrical power is an important riparian use. (Getches, p. 41)
The holder of an earlier permit has no absolute preference over the holder of a
later permit. (Getches, p. 49)
New York has a harmless use law that allows a non-riparian to divert water if
no riparian is harmed. (Getches, p. 56)
21


About half the permit states grant perpetual permits and for the others, a permit is
for a fixed term ranging from three to fifty years. (Getches, p. 61)
Seniority gives no priority in times of shortage. (Ibid.)
Riparian rights are property rights that may be held only by owners of riparian
land. (Getches, p. 62)
Avulsion occurs when a stream suddenly changes its channel. Avulsion can
effectively transform riparian land into non-riparian, thereby depriving the
unfortunate owner of riparian rights. (Getches, p. 71)
Most courts have held that a change in stream course constitutes avulsion if it is
considerable, violent, and abrupt. (Ibid.)
Colorado Water Rights Administration Act of 1969
In 1879, The Colorado General Assembly created ten water districts for
administering water rights and that authority was assigned to the state Division of Water
Resources. (Stenzel, 2013) By this action, Colorado was the first state in the United
States to apply the appropriation doctrine and have a state agency administers the
program. Ibid. Several amendments to state law were enacted dealing with water rights
since 1879, however, the most significant contribution to state water policy occurred
when the simultaneous administration of both surface water and groundwater was
acknowledged by the state legislature.
Less than 100 years later, the Colorado General Assembly enacted the Colorado
Water rights Administration Act of 1969 for the purpose of integrating administration of
both surface water and groundwater (Hobbs, 1999). This law provides direction to
water divisions, division engineers, water judges, referees, and water clerks. In addition,
22


the development of a tabulation of water rights was established along with the
requirement for proper notice for both application and determination of water rights. This
act also solidified both the role of the Colorado Division of Water Resources (aka State
Engineers Office) and the Colorado Judiciary. (Ibid)
As contained in Article XVI, sections 5 and 6 of the Colorado Constitution,
water of every natural stream is guided by the prior appropriation doctrine. By the
policy statement of the General Assembly, both surface water and groundwater is now a
public resource to be decreed and administered in priority. Ibid. According to Colorado
Supreme Court Justice Gregory Hobbs, the 1969 Act constitutes a political, legal,
technical, and administrative breakthrough of major dimensions. Ibid.
According to Justice Hobbs, the following three activities precipitated the 1969
Act. (Ibid p. 13).
1. The State Engineer, on a case-by-case basis, began to regulate tributary
groundwater wells.
2. The Colorado General Assembly directed the Department of Natural Resources to
investigate groundwater-surface relationships and recommend legislation, and
3. In a contested groundwater case in Water Division 2 (Arkansas River and its
tributaries), the Colorado Supreme Court urged the State Engineer to adopt
regulations in a comprehensive manner.
Prior to the enactment of the 69 Act, Justice Groves of the Colorado Supreme
Court proclaimed, It is implicit in these constitutional provisions that, along with vested
rights, there shall be maximum utilization and how constitutionally that doctrine can be
23


integrated into the law of vested rights. Ibid. The next year, the Colorado legislature
adopted the 1969 Act.
The 1969 Act created seven water divisions: Water Division 1 (South Platte and
other northeastern plains rivers including the Republican River basin and Laramie river
basin) headquarter in Greeley, Water Division 2 located in Pueblo and responsible for the
Arkansas River and other southeastern plains tributary rivers, Water Division 3 located in
Alamosa and responsible for the Rio Grande and its tributaries. The Water Division 4
offices is located in Montrose and is responsible for the Gunnison River and its
tributaries, while the Water Division 5 office is located in Glenwood Springs and
administers the Colorado River and its tributaries to the state line. The Division 6 office
administers the Yampa, White, and their tributaries and the North Platte Rivers and is
located in Steamboat Springs. Finally, the Division 7 office, while located in Durango, is
responsible for the San Juan, Dolores and other Southwestern rivers. Ibid, p. 14
In summary, the 1969 Act created, directed, or enabled the following:
1. Seven water divisions in Colorado.
2. Each water court (in each water division) publishes a monthly resume of
applications received each month. This resume serves as notice to interested
parties.
3. The State Engineer generates a tabulation of decreed water rights with their
priorities and other pertinent information. The priority date is a function of the
year the application was filed and the date of initial appropriation.
4. The State Engineer periodically compiles an abandonment list.
24


5. The Division Engineers file consultation reports and recommendations on
applications submitted to the referees and water judges.
6. Establishes the water courts as the only venue for issuing water decrees and
divides authority granted to the water courts versus the State Engineer.
7. Commands the State Engineer, Division Engineers, and Water Commissioners
must administer the waters of natural streams in accordance with judicial decrees.
8. Declares the administration of non-tributary groundwater is not subject to the
doctrine of prior appropriation.
9. Changes of water rights are a function of historic consumptive use and terms and
conditions are imposed so as not to injure other decreed water rights.
10. By amendment, the Colorado Water Conservation Board, is granted authority as
the only state agency able to appropriate instream flows and minimum lake levels
for the preservation of the natural environment to a reasonable degree.
11. Colorado must deliver water to satisfy the nine interstate compacts and two
equitable apportionment decrees of the United States Supreme Court. Ibid.
According to Colorado Supreme Court Justice Hobbs, the major accomplishments
of the 1969 Act are:
1. Integration of surface water and tributary groundwater into a unitary
adjudication and administration system;
2. Specialized water court jurisdiction and engineer administration on a watershed
basis;
3. Resume notice procedure for obtaining jurisdiction for adjudication of rights;
25


4. Case-by-case decrees and appeals in the context of an ongoing and
comprehensive adjudication;
5. Authorization of augmentation plans to enable otherwise out-of-priority water use
through the provision of replacement water;
6. Effective rulemaking and enforcement authority in the state and division engineer
for the protection of state, federal, and interstate rights; and
7. Explicit procedures for filing and pursuing applications and objections to
applications for water rights, conditional water rights, changes of water rights,
and augmentation plans. Ibid p. 17
However, not all are full advocates of the 1969 Act. Colorado Water Attorney
Melinda Kassen, while representing environmental interests (Trout Unlimited), offers an
alternative evaluation (Kassen, 1999). While recognizing the integration of the
administration of both surface water and ground water, Kassen contends ... .the Act did
not incorporate most of the management techniques necessary to make maximum
utilization work in an accountable system. Furthermore, Kassen states, Such practices
should have included, metered water, measured crop use, strong management, waste
control, and strict adherence to the constitutional concept of public property. Kassen
summarizes the water court based system has the following disadvantages (Ibid, p. 3):
1. Court costs are too high and the need for legal counsel limits the probability that
certain types of transactions will occur.
2. The high court costs favor those participants with sufficient resources.
3. Public access to the court process limits participation.
26


4. The non-water right holders have limited arguments in opposing water rights
applications.
5. The water courts, due to case-by-case determinations, fail as an effective forum
for water resource planning.
Kassens contends, if Colorado were to follow a permit-based system
(administrative agency issue water permits versus water court decrees), the agency could
also have responsibilities for resource management and planning. This assignment could
lead to efficiencies in water allocation and certainty of consistent procedures.
Summary of Chapter II
Today, the administration of Colorados water resources is the purview of the
Colorado Division of Water Resources, and the seven Division Offices located in each of
the major stream systems. The water commissioners are the day to day administrators
that use the tabulation of water rights for their assigned areas, to assign who is in priority
on any given day. As more water court generated decrees become more complicated and
deal with smaller quantities of water, the job of all the water administrators is becoming
more complicated.
The Colorado legislature, over time, has generated statutes (listed in APPENDIX
B) that give specific operational structure and control to the State and Division Engineers.
Without these boundary conditions granted to the State Engineer, water administration
in view of climate change and possible adoption of a Public Trust Doctrine in Colorado,
would be problematic, if not impractical. Clear boundaries of assigned responsibilities
between Colorados three branches of government must be respected and maintained.
27


Blurring of the lines between the three branches will benefit no one, especially the
ultimate water user.
28


CHAPTER III
JUDICIAL RESPONSIBILITIES IN COLORADO WATER RESOURCES
Colorado Constitutional Convention Dealing with Water
The Colorado Constitutional Convention began on December 20, 1875 and
required 87 days of discourse to produce the state constitution. (Stenzel, p. 197) A key
discussion item dealt with water and the states role. A nine-member committee on
irrigation was formed and was chaired by S.J. Plumb of Greeley and John S. Wheeler of
Weld County. Up until that time, common law or riparian law was the law of the land,
but Mr. Plumb was determined to change the system to prohibit Ft. Collins from
commanding the flow of the river during the next drought. Ibid.
On Wednesday, January 5, 1876, committee member Byron L. Carr, representing
Boulder, offered the following resolution:
Resolved, That the following sections shall be part of the Constitution of the State:
Sec. The primary right of ownership in the waters of all the streams in this State
is and shall be at all times in the State, and the said streams and the waters therein are
an shall be subject to the control of the Legislature.
Sec. It shall be the duty of the Legislature from time to time to pass such laws as
may be necessary to secure a just and equitable distribution of the water in the streams of
the State, for mining, irrigating and manufacturing purposes, in such a manner as to best
foster and encourage these great industries of the State; promote the greatest good to the
greatest number of citizens of the State; and at the same time to provide for the security
and protection of all person in their individual rights.
29


Sec. The Legislature may pass general laws authorizing the use of water for
mining, agricultural and manufacturing purposes by corporations, associations or
individuals, which laws may be altered or repealed at any time.
Byron L. Carr was no relation to Ralph L. Carr, Colorado Governor from 1939-
1943, and for whom the Colorado Judicial Center in Denver is named.
(AncestryLibrary.com Colorado State Census, 1885)
On Friday, February 11, 1876, S.J. Plumb proposed the following modifications
to the Irrigation and Agriculture sections dealing with water (p. 296-297)
Section 1. The water of every natural stream within the State of Colorado is
hereby declared to be the property of the People of said State and the same is dedicated
to their use forever.
Sec. 2. Priority of appropriation shall give priority of right except from
the first day of June until the first day September in each and every years, when lands
usedfor agricultural purposes shall have the preference.
Sec. 3. All person and corporations shall have the right of way across public,
private and corporate lands for the construction of ditches, canals andflumes for the
purpose of conveying water for the irrigation of agricultural lands andfor mining and
manufacturing purposes andfor drainage.
Sec. 4. All ditches, canals and flumes constructed by any person or corporation
for conveying water from its natural channel shall be subject to all acquired rights to the
waters upon said stream, above and below the head of such ditch or flume.
30


Sec. 5.
The Board of County Commissioners in their respective counties
shall regulate the price to be charge for the use of water, whether furnished by
individuals or by corporation, so as to secure justice between the contracting parties.
Sec. 6. All ditches, canals andflumes constructed by individuals or
corporations for the exclusive purpose of irrigating lands owned by said individuals or
corporations shall not be separately taxed.
On Friday, February 18, 1876, Irrigation committee member, Mr. W.B. Felton,
representing Saguache County (western Colorado including the town of Gunnison),
offered the following substitution for Section 1:
Section 1. The unappropriated water of the natural streams within the State
of Colorado is hereby declared to be dedicated to the use of the public, subject to the
provisions of this Constitution and the laws of the General Assembly, (p. 344)
The Irrigation and Agricultural committee members met on February 23, 1876
and Committee Chairman S.J. Plumb proposed the following modification to Section 1:
Section 1. The water of every natural stream, not heretofore appropriated
within the State of Colorado, is hereby declared to be the property of the public, and the
same is dedicated to their use as herein provided by this Constitution, (p. 392)
At 2pm the same day, the Convention Irrigation Committee members met and
changed Sections 1, 2 and 3 as follows (393):
Section 1. The water of every natural stream, not heretofore appropriated
within the State of Colorado, is hereby declared to be the property of the public and the
same is dedicated to the use of the people of the State, subject to appropriation as
hereinafter provided.
31


Sec. 2 Except for domestic purposes, priority of appropriation shall give
priority right, except from the last day of May until the first day September, in each and
every year, when lands usedfor agricultural and horticultural purposes shall have the
preference over manufacturing establishments.
Sec. 2 All persons and corporations shall have the right of way across
public, private and corporate lands, for the construction of ditches, canals andflumes for
the purpose of conveying water for domestic purposes andfor the irrigation of
agricultural lands andfor mining and manufacturing purposes andfor drainage, upon
payment of just compensation, (p. 394)
At 2pm on March 1, 1876, irrigation committee member Mr. Pease moved that
section 2 be stricken and the following be substituted (p. 503):
Section 2. The right to divert the unappropriated waters of any natural
stream to beneficial uses shall never be denied. Priority of appropriation shall give the
better right as between those using the water for the same purpose, but when the waters
of any natural stream are not sufficient for the service of all those desiring to use the
same, those using the water for agricultural purposes shall have preference over those
using the same for the purpose of manufacturers.
The last day of deliberations concerning water issues was held on Wednesday,
March 8, 1876 beginning at 9am. (p. 611) On that day, it was agreed that: Sections 1 and
2 remained unchanged; section 3 as modified by the committee was approved by the
Convention; sections 4 and 5 remained unchanged, and the changes to sections 6 and 7 as
recommended by the Committee was approved by the Convention, and section 8
32


remained unchanged and section 11 as modified by the committee was approved by the
Convention, (p. 616).
The irrigation section of the adopted Colorado Constitution is located in Article
XVI Mining and Irrigation, and is as follows (p. 700):
Section 5. The water of every natural stream, not heretofore appropriated,
within the State of Colorado, is hereby declared to be the property of the public, and the
same is dedicated to the use of the people of the State, subject to appropriation as
hereinafter provided.
Section 6. The right to divert the unappropriated waters of any natural
stream to beneficial uses shall never be denied. Priority of appropriation shall give the
better right as between those using the water for the same purpose; but when the waters
of any natural stream are not sufficient for the service of all domestic purposes shall have
the preference over those claiming for any other purpose, and those using the water for
agricultural purposes shall have preference over those using the same for manufacturing
purposes.
Section 7. All persons and corporations shall have the right of way across
public, private and corporate lands for the construction of ditches, canals andflumes for
the purpose of conveying water for domestic purposes, for the irrigation of agricultural
lands, andfor mining and manufacturing purposes, andfor drainage, upon payment of
just compensation.
Section 8. The General Assembly shall provide by law that the Board of
County Commissioners in their respective counties, shall have power, when application
33


is made to them by either party interested, to establish reasonable maximum rates to be
chargedfor the use of water, whether furnished by individuals or corporations.
The Colorado Supreme Court, in 1888 and 1891, rendered opinions that would
fundamentally establish doctrine relative to management of the states water resources.
The first case answered the question as to the right to change a water right (both location
and use) and the second case established the concept of a water right classified as
property.
The next section in this dissertation offers a timeline of law relating to water
administration. The process has been deliberate, comprehensive, forthright, and concise.
Should the Public Trust Doctrine be adopted in Colorado, much of what has been adopted
and administered, maybe in jeopardy due to uncertainty of application of existing
statutes, common law (judge made law), and which would govern under a state
constitutional amendment via the ballot initiative process.
Timeline of Colorado Surface and Groundwater Laws
The following timeline of Colorado surface and groundwater law (reduced in part
by this author), from a presentation given by (Hobbs, 2007) illustrates the complex
assignment of responsibilities assigned to the State Engineer by the Colorado Legislature
and the assignment of some duties to the Colorado Judiciary. Colorado and recently,
Montana, are the only states where adjudications for water rights are the responsibility of
the courts.
1876 Article XVI, Sections 5 and 6 of the Colorado Constitution declare that the
un-appropriated water of every natural stream is the property of the public
dedicated to the beneficial use of the people of the state by priority of appropriation.
34


1903
Colorado General Assembly provides that any water right derived from
any natural stream is subject to court adjudication, 1903 Colo. Sess. Laws, Ch. 130,
297-98.
1914 Colorado Supreme Court confirms that the constitutional term natural
stream subjects to the rule of prior appropriation all sources of stream supply,
including percolating ground water, that is tributary to a surface stream, German
Ditch & Reservoir Co.. 56 Colo. 252, 270-71 (1914).
1951 Colorado Supreme Court holds that Colorado law includes a presumption
that all groundwater is tributary to and subject to appropriation and administration as
part of the waters of a surface stream, unless a person proves by clear and satisfactory
evidence that the ground water is not tributary, Safranek v. Town of Limon. 123
Colo. 330, 333 (1951).
1965 Colorado General Assembly, by a separate act from the Ground Water
Management Act, requires State Engineer to administer tributary groundwater in
accordance with the doctrine of prior appropriation that is applicable to the
distribution of surface water, and adopt rules and issue orders necessary to enforce
this responsibility, 1965 Colo. Sess. Laws, Ch. 318, 1244-45.
1968 Colorado Supreme Court states that implicit in the Colorado
Constitutions prior appropriation provisions are the propositions that: (1) along with
vested rights, there shall be maximum utilization of the water of this state and (2)
administration of water in the second century of prior appropriation law involves how
35


maximum utilization of surface water and tributary groundwater can be integrated
into the law of vested rights, Fellhauerv. People. 447 P.2d 989, 995 (Colo. 1968).
1969 Colorado General Assembly adopts the Water Right Determination and
Administration Act of 1969 which, among other provisions, states that (1) tributary
groundwater and surface water shall be administered according to the doctrine of
prior appropriation, in order to maximize beneficial use, (2) vested surface water and
tributary groundwater rights shall be protected in order of their decreed priorities, and
(3) augmentation plans may be decreed to allow out-of-priority diversions that are not
subject to state engineer curtailment, if sufficient replacement water is provided to
alleviate material injury to adjudicated water rights, 1969 Colo. Sess. Laws, Ch. 373,
1200-1224.
1977 Colorado General Assembly repeals legislation it had enacted in 1974,
1974 Colo. Sess. Laws, Ch. Ill, 440-42. that had allowed the State Engineer to
approve temporary augmentation plans while the water court was adjudicating
applications for augmentation plans, 1977 Colo. Sess. Laws, Ch. 483, 1702-04.
2002 Colorado General Assembly (1) authorizes State Engineer to approve
substitute supply plans for out-of-priority tributary groundwater diversions under
limited circumstances while augmentation plan applications are pending in the water
court, and (2) approves the Arkansas river basin amended rules governing the
diversion and use of tributary groundwater in that basin, 2002 Colo. Sess. Laws, Ch.
151, 459-64.
2003 Colorado Supreme Court holds that proposed State Engineer 2002 South
Platte Basin rules allowing out of priority diversions under replacement plans, in the
36


absence of an augmentation plan application pending in water court, were contrary to
statute and in excess of his authority, Simpson v. Bijou Irrigation Co.. 69 P.3d 50, 67
(Colo. 2003).
2004 Colorado General Assembly allows South Platte tributary groundwater
wells to operate out-of-priority under State Engineer approved substitute supply
plans, with provisos that (1) augmentation plan applications must be filed in Division
No. 1 Water Court by December 31, 2005, and (2) wells not included in an
adjudicated augmentation plan or State Engineer approved substitute supply plan
shall be continuously curtailed from operating out of priority, 2004 Colo. Sess.
Laws, Ch. 316, 1205.
The following section of this dissertation presents early Colorado Supreme Court
decisions and how they established doctrine in the administration of the states water
resources.
Colorado Water Rights Foundational Supreme Court Decisions
The four basic tenants of Colorado water administration according to Wolfe
(2014) are:
1. The water is used for a judicially recognized beneficial use.
2. The use of the water must not result in injury to other vested water right holders.
3. The water must be efficiently used and not result in waste, and
4. The water must be physically diverted from the water source (RICD a
recreational in-channel diversion is permissible)
Two cases decided by the Colorado Supreme Court in 1888 and 1891 further
defined the operational constraints of water law and its administration. The first case in
37


1888 was Fuller et al., v. Swan River Placer Mining Company (Supreme Court of
Colorado 12 Colo. 12; 19P. 836; 1888 Colo.). This case was decided in the October term
of the court. This case granted the right to change the place of diversion and place of use.
The second case, decided in the January term of 1891, Strickler v. City of Colorado
Springs, Supreme Court of Colorado, 16 Colo. 61; 26P. 313; 1891 Colo., was the seminal
decision declaring a water right is a property right with all protections as provided by the
United States Constitution. The following detailed analyses of the cases are respectively
referenced to each case and are presented to illustrate the foundational building blocks of
Colorado water law (use of water is a property right, and the right can be changed as to
use and location).
Fuller et al., v. Swan River Placer Mining Company
The right to change the place of diversion and use was further solidified by
Fuller. This case concerns the operation of the Swan River Placer Mining Company,
then located east of present day Breckenridge, Colorado, and the changing of decreed
points of use. The Colorado Supreme Court, in their decision, specifically cited Sieber v.
Frink, 7 Colo. 148, that the point of diversion may be changed without affecting the
right of priority, where no change is made in the quantity of water diverted, and no one is
injured by the change. The Colorado Supreme Court also specifically referenced five
California Supreme Court opinions, prior to rendering their decision. The five California
cases cited are (1) Maeris V. Bicknell, 7 Cal. 262-264, {2) Kidd v. Laird, 15 Cal. 162-180,
(3) Mining Co. V. Morgan, 19 Cal. 609-616, and (4) Davis v. Gale, 32 Cal. 27., and
finally, Junkans v. Bergin, 61 Cal. 267-270.
38


In Maeris, it was held a party who makes a prior appropriation of water can
change the place of its use without losing that priority as against those whose rights have
attached before the change. The core theme of this decision, was any adoption of any
other rule would destroy the utility of the appropriation.
In Kidd, the California Supreme Court decided the use of water of a stream is
strictly usufructuary, and, .. .that in all cases the effect of the change upon the rights of
others is the controlling consideration, and that, in the absence of injurious consequences
to others, any change which the party chooses to make is legal and proper.
In the Mining decision, the California Court held that the right to change the
point of diversion was absolute and unqualified, except as limited by the condition that
the change must not injuriously affect the right of others.
In the fifth California opinion, Junkans, the decision contains the following
statement concerning the right to change the historical point of diversion, Undoubtedly
one entitled to divert a quantity of water from a stream may take the same at any point of
the stream, and may change the point of diversion at pleasure, if the rights of others be
not injuriously affected by the change. These referenced five California decisions
assisted the Colorado Supreme Court decision in Fuller. Ibid. The next case presented,
is Strickler v. City of Colorado Springs, which fundamentally characterized the nature of
water use in Colorado (a property right that can be purchased and then the point of
diversion moved).
Strickler v. City of Colorado Springs
The January 1891 Strickler case illustrates a complaint between an existing water
rights owner and a city that needed additional water supply to satisfy growth of the city.
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Strickler argued that a water right is tied to the land and should not be moved upon sale
of the property. Colorado Springs purchased some historically agricultural water rights on
Fountain Creek and requested to transfer the point of diversion above Manitou Springs on
Ruxton Creek to take advantage of an existing ditch, reservoir and pipeline to Colorado
Springs that the city constructed in 1878. The city also had the most senior water right on
Ruxton Creek.
The three points the Colorado Supreme Court had to decide were:
1. Are the water rights of a junior appropriator from a tributary stream subject to the
water rights of a senior appropriator downstream?
2. Can the farmers historic water right priority be transferred by sale to a city for
municipal uses with the same priority date?
3. If the Cities uses are domestic, has it the right to take waters previously
appropriated for agricultural purposes?
The Court responded to the first inquiry by stating, That an affirmative answer
must be given to the first of the above questions seems obvious. A negative answer
would wipe out the doctrine of priorities upon which our elaborate system is based...
As to the second question, the Court decided if the plaintiffs argument that a
water right cannot be transferred by sale separate from the land, had merit. The Court
acknowledged the findings in Fuller, by stating, .. .for although the decision is based
upon diversion for mining purposes, no reason is perceived why the rule in reference to
appropriations for agricultural uses should not be the same, the requirement in all cases
being that the water diverted from the stream shall be applied to a beneficial use.
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The Court again referenced a California Supreme Court decision. The stated, We
think that the rule announced in Kidd v. Laird, 15 Cal. 162, that, in the absence of
injurious consequences to others, any change which the party chooses to make is legal
and proper, is the only rule which under the rights of the prior appropriator can be fully
exercised. In addition, the court concluded by stating, The right to change, so limited,
includes the point of diversion, and place and character of use.
This Colorado Supreme Court decision in Strickler also addressed the issue of
water rights and its status as property. Again, the Colorado court referenced previous
decisions by the California courts. For instance, Colorado referenced Kidd v. Laird, 15
Cal. 161, where it was said, The court has never departed from the doctrine that running
water, so long as it continues to flow in its natural course, is not and cannot be made the
subject of private ownership. Kidd continues by stating, A right may be acquired to its
use which will be regarded and protected as property, but it has been distinctly declared
in such cases that the right carries with it no specific property in the water itself. The
Colorado court in Strickler continues the theme relative to property by stating, To say
under such circumstances that he could not sell the water right to be used upon other land
would be to deprive him of all benefits from such right. We grant that the water itself is
the property of the public; its use, however, is subject to appropriation.
The Colorado Supreme Court concludes its Strickler decision by stating, In our
opinion this right may be transferred by sale so long as the rights of others, as in this case,
are not injuriously affected thereby." The Court also references the property protections
including the Fourteenth Amendment to the United States Constitution, which provides
that no person shall be deprived of life, liberty or property without due process of law.
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These two foundational Colorado Supreme Court cases established boundary conditions
for judicial decisions since that time. However, as presented in the following section,
judicial review of administrative agency, such as the Colorado Division of Water
Resources actions can complicate matters.
Judicial Review of Administrative Agency Decision Processes
When considering the above scenario one must remember the judiciary is
appointed; however, judges can be un-retained by voters. Judges, even though political
appointees, can often surprise because once confirmed they are not subject to the
capriciousness of the politicians. Judges serve for life or until retirement (unless voters
decide not to retain, which is an infrequent occurrence).
In the alternative, agency appointees are hired and fired politically on a frequent
basis and do not often serve long-term based on merit but are expendable by the
executive, often at the clamor of the legislature. Long term thought processes and
planning are difficult to accomplish by agencies unless all three branches come together
and the judiciary continually is called upon to uphold the original agency intent.
This section describes the concept of separation of powers, federalism, the role of
the judiciary, and concludes with a Colorado example of judicial-agency interaction.
Separation of Powers
The National Conference of State Legislatures (NCSL), states the term trias
politica, or separation of powers was coined by Charles-Louis de Secondat, an 18th
century French social and political philosopher. His publication, Spirit of the Laws, is
considered one of the great works on political theory and jurisprudence. This document
inspired the Constitution of the United States. Under de Secondats model, political
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authority of the state is divided into legislative, executive and judicial powers and he
further asserts, in order to effectively promote liberty, these three powers must be
separate and act independently (Ibid).
The intent of the separation of powers is to prevent the concentration of power
and provide for checks and balances. This is theoretically done by dividing government
responsibilities into distinct branches thus preventing one branch from exercising the core
functions of another.
The traditional characterizations of the powers of US government are:
The legislative branch is responsible for enacting the laws of the state and
appropriating the money necessary to operate the government.
The executive branch is responsible for implementing and administering the
public policy enacted and funded by the legislative branch.
The judicial branch is responsible for interpreting the constitution and laws and
applying their interpretations to controversies brought before it (Ibid).
The NCSL notes that while separation of powers is paramount to the workings of
American government, no democratic system exists with an absolute separation of
powers and at the same time, an absolute lack of separation of powers. Also stated in the
NCSL document, governmental powers and responsibilities intentionally overlap because
they are too complex and interrelated to be clearly compartmentalized (Ibid).
What does this infer? There is an inherent measure of competition and conflict
among the branches of government. History illustrates there is an ebb and flow of
preeminence among the governmental branches and such experience suggest that where
power resides is part of an evolutionary process.
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Federalism
From the History Learning Site Federalism, and all it stands for, underpins
politics in America. It is a system of government in which a written constitution divides
power between a central government and regional or sub-divisional governments. Both
types of government are supreme within their proper sphere of authority and both have to
consent to any changes to the constitution (Ibid).
Federalism can be considered a compromise between the concentration of power
and a loose confederation of independent states for governing a variety of people in a
large expanse of territory and has the virtue of retaining local pride, traditions and power,
while allowing a central government that can handle common problems (Ibid). The
Tenth Amendment (ratified in 1791) to the US Constitution forms the basic principle of
American federalism: The powers not delegated to the United States by the Constitution,
nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Judicial Review
According to Burrows and Garvey (2011), there is a strong presumption that
Congress intends judicial review of administrative action. This presumption is
incorporated in the Administrative Procedures Act (APA), which further provides final
agency action for which there is no other adequate remedy in a court (is) subject to
judicial review. There are two exceptions, however, and those instances recognized by
the APA are (1) to the extent that... statutes preclude judicial review and (2) where
agency action is committed to agency discretion by law. There is a tangential
connection, in that judicial review of an unreviewable determination may occur if there is
a constitutional issue (Ibid).
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Unless otherwise dictated by statute, the APA provides for several types of
review. The APA states, with regard to the standards of judicial review of an agency
action and the determination whether the agency action is lawful:
The reviewing court shall... hold unlawful and set aside agency action, findings,
and conclusions found to be -
(A) Arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law;
(B) Contrary to constitutional right, power, privilege, or immunity;
(C) In excess of statutory jurisdiction, authority, or limitations or short of statutory
right;
(D) Without observance of procedure required by law;
(E) Unsupported by substantial evidence in a case subject to sections 556 and 557 of
this title or otherwise reviewed on the record of an agency hearing provided by
statute; or
(F) Unwarranted by the facts to the extent that the facts are subject to trial de novo by
the reviewing court.
In making the foregoing determinations, the court shall review the whole record
or those parts of it cited by a party, and due account shall be taken of the rule of
prejudicial error(Ibid).
The above provision infers the type of judicial review may differ depending on
whether the court is reviewing a formal or informal rulemaking, respectively substantial
evidence or arbitrary and capricious.
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Burrows and Garvey further state the standard of judicial review that concerns
congressional delegations of legislative authority to agencies, is whether the agency
action is in excess of statutory jurisdiction, authority, or limitations, or short of statutory
right. According to the US Supreme Court, an administrative agencys power to
regulate in the public interest must always be grounded in a valid grant of authority from
Congress. Courts typically grant various levels of deference to agency interpretations of
statutes when examining questions whether an agency action exceeds its congressionally
delegated statutory authority (Ibid).
Sub-Section Conclusion
An example of potential conflict between the judiciary and an administrative
agency occurred in 2002 in Colorado. The state agency in question was the Colorado
Division of Water Resources (aka Office of the State Engineer). The agency attempted to
promulgate water administrative rules for the South Platte River basin, however, those
rules were appealed to the Water Court for Water Division 1 (South Platte River and its
tributaries), whereby the Court determined the agency did in fact act outside its legislated
authority. The State Engineer appealed to the Colorado Supreme Court in Simpson v
Bijou Irrigation Co., 69P. 3d 50 (Colo.2003). What occurred during the period of the
appeal and the court hearing, the Colorado State Legislature acted unusually prompt and
enacted legislation that clarified the Rules in Water Division 2 since the language passed
in 2002 was general in nature. The opinion of the state Supreme Court recognized such
action, with a bit of angst. This was an interesting event in that an administrative agency
had been practicing its assumed responsibilities historically. An appeal was made
disagreeing with that agency responsibility with the thought that responsibility was the
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purview of the judiciary, with the Colorado Supreme Court agreeing. The legislature, on
the same day as the supreme court decision, clarifies the duties of the State Engineer in
the Arkansas River basin by changing portions of §§37-92-308. The result was some
additional technical duties were assigned to the State Engineer and conversely removed
from the judiciary. Is it desirous to have three discreet governmental bodies? Yes. At
times this relationship is turbulent, at times mildly agitated. Is it desirous to have this
arrangement static? No.
Similar Legislated Responsibilities of the Colorado Water Courts and the State
Engineer
Colorado and now recently Montana, are the only prior appropriation states where
water adjudications are the specific and legislatively mandated responsibility of the
judicial branch of state government. In the other 8 prior appropriation states and 10 prior
appropriation/riparian states, all water adjudications are the specific purview and
responsibility of the respective State Engineer.
Since 1969, by legislative enactment, Colorado granted authority to the judicial
branch of state government for water rights adjudications. Prior to this time, the district
course assumed this responsibility. The U.S. Supreme Court decision in Chevron v.
NRDC 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694, 21 ERC 1049 (1984) was a
landmark decision addressing decisions to be made by administrative agencies and those
of the judiciary. To illustrate the application of Chevron v. NRDC to water
administration in Colorado, the following is a summary discussion of the case, followed
by a discourse on the Supreme Courts landmark administrative law decision and how it
applies directly to current Colorado law concerning water administration.
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The purpose of this discussion is not to declare Chevron applies directly to the
Colorado water court/State Engineer shared responsibilities of developing water
augmentation plans, changes in water rights, or temporary non-decreed changes in water
rights. Chevron is illustrated to show the US Supreme Courts opinion, that when a
legislative directive, via a statute, that applies to an administrative agency, that deference
to the application of that specific statute, is granted to the administrative agency and not
the judiciary.
The Clean Air Act Amendments of 1977 (Amendments) impose certain
requirements on States that have not achieved the national air quality standards dictated
by the Environmental Protection Agency (EPA) in earlier legislation. Regulations, active
as of 1981, by the EPA, allow a State to adopt a plant-wide definition of the term
stationary source, if an existing plant contains several pollution-emitting devices. The
81 regulation allows the plant to install or modify one piece of equipment, without
meeting the permit conditions, predicated on the alteration (for economic reasons) does
not increase total emissions from the plant. This regulation allowed a State to categorize
all of the pollution-emitting devices as being within a single bubble. The Amendments
were complex and they did not disturb the prior definition of stationary source,
however, a new definition for major stationary source was promulgated. In addition,
the legislative history was silent concerning the bubble concept and the question as to
whether the permit program allowed a stationary source. The National Resources
Defense Council, Inc. (Respondents) petitioned for review in the Court of Appeals for the
District of Columbia Circuit, which set aside the regulations declaring the bubble
concept as contrary to law. It is noted the EPA Secretary at the time was Ms. Anne
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Gorsuch, a CU law graduate (editor of the CU Law Review and Fulbright Scholarship
recipient), and she based her administration on the New Federalism approach of
delegating Agency functions and services to the individual States.
The question of law for the U. S. Supreme Court to decide, was the statutory term
stationary source a reasonable construction by the EPA, in their agency decision to
allow States to consider all pollution-emitting devices within the same industry grouping
as a single bubble?
The U.S. Supreme Court decided yes, and reversed the judgment of the Court of
Appeals. When an administrative agency is responsible to a congressionally created
program, and there are gaps left, implicitly or explicitly by Congress, then there is an
express delegation of authority to the agency to make clear or explain a specific
provision(s) of the statute by agency regulation. The U. S. Supreme Court considered
EPA regulations a reasonable construction of the Congressional intent. This is considered
a landmark case that awards agencies deference for their reasonable policy making
decisions.
The U. S. Supreme Court found that the intent, legislative history, and
implementation details were lacking in the Clean Air Amendments of 1977. Since the
marching orders to EPA were muddy, then EPA took the initiative and developed, what
the Agency considered a fair and reasonable interpretation, and therefore produced
detailed guidelines. The District of Columbia Circuit Court, in 1980, read the statute as
inflexible in the effort to devise a plant-wide definition for plants designed to maintain
clear air and to deny such a definition for programs designed to improve air quality. The
U. S. Supreme Court deferred to the expertise of EPA and did not consider it appropriate
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that the U. S. Supreme Court should switch roles, (nor should the District of Columbia
Circuit Court), of a judicial body, to that of an agency body.
Discussion on Chevron v. NRDC and Colorado Water Law
The following is taken directly from Justice Stevens opinion in Chevron v.
NRDC:
When a court reviews an agency's construction of the statute
which it administers, it is confronted with two questions. First,
always, is the question whether Congress has directly spoken to
the precise question at issue. If the intent of Congress is clear,
that is the end of the matter; for the court, [p843] as well as the
agency, must give effect to the unambiguously expressed intent
of Congress. If, however, the court determines Congress has not
directly addressed the precise question at issue, the court does
not simply impose its own construction on the statute, as would
be necessary in the absence of an administrative interpretation.
Rather, if the statute is silent or ambiguous with respect to the
specific issue, the question for the court is whether the agency's
answer is based on a permissible construction of the statute.
The power of an administrative agency to administer a
congressionally created . program necessarily requires
the formulation of policy and the making of rules to fill
any gap left, implicitly or explicitly, by Congress.
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There is a similar, if not parallel situation in Colorado. The State Engineer is
charged with administering the decrees of the court, but at the same time, his technical
expertise in water resources engineering, is not used to the fullest extent possible. This is
because the courts are legislated the exclusive authority of issuing water decrees. The
courts are the determiners of both law and fact. The determiners of engineering fact,
however, should be in a venue other than the courts.
The State Engineer interpreted §37-80-120, C.R.S. (Upstream Storage substitute
supply -historic natural depletion) as allowing the approval of temporary changes (aka
replacement plans) in water rights and between 1970 and 2002, the State Engineer
reviewed and approved over 1,500 temporary plans without any approved plans being
reviewed and overturned by any of the seven (7) water courts in Colorado.
In Simpson v. Bijou (2003), the Colorado State Supreme Court affirmed the
Water Division 1 (South Platte River basin) decision that §37-80-120, did in fact, not
give such authority to the State Engineer. However, it is critical to note, on the same day
as Simpson v Bijou Colorado Supreme Court decision, the Colorado Legislature enacted
an amendment to §37-92-308, which specifically upheld 308 and specifically permitted
the Water Division 2 office authority to review and issue replacement plans in Water
Division 2 (Arkansas River basin and its tributaries) without judicial oversight. Possibly,
this action was taken to ensure the Bijou decision did not invalidate the Water Division 2
Rules. The process had begun, therefore, where the Colorado General Assembly
recognized the responsibilities of the State Engineer are expanded by allowing the
review of replacement plans.
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Summary of Section
The Colorado judiciary, via the water courts and the administrative agency,
through the State Engineers Office, are perhaps the two agencies of Colorado state
government, that are best situated to work in tandem and most efficiently, for the
betterment of Colorados water users and management of its water resources. As will be
offered elsewhere in this dissertation, the Colorado Water Conservation Board is also
well positioned to augment the water court/state engineer water administration and
management team.
The Public Trust Doctrine (PTD)
A Legal Definition:
Definition from Nolos Plain-English Law Dictionary, Cornell Univ. Law School,
The principle that certain natural and cultural resources are preserved for
public use, and that the government owns and must protect and maintain
these resources for the public's use. For example, under this doctrine, the
government holds title to all submerged land under navigable waters.
Thus, any use or sale of such land must be in the public interest.
PTD in California and Oregon
Conflicting priorities, limited natural resources, environmental activism, activist
judges, climate change, state constitutions and projected increases in population in the
western United States constitute a recipe for either mandated, managed and regulated
cooperation or endless courtroom warfare. At the center is this conflict is water, a
limited and overused natural resource that is predicted to be less in quantity as climate
change impacts the arid west.
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Two western states, California and Oregon, are at the forefront of further
implementation of the Public Trust Doctrine (PTD) concept in natural resource
management and planning. Historically, PTD has involved states with navigable rivers
and the concept of state sovereignty over ownership and control of river stream beds as
compared to private ownership and use, as state sovereignty in these instances has been
considered a legally reasonable and necessary assumption of duty and control. The
continuation of commerce for the public good initially underpinned the concept of the
PTD. Now, however, PTD advocates consider such sovereignty extends to other water
based activities and uses, whether or not specifically decreed by state constitutions or
existing law.
A central foundation as to the applicability of public trust, hinges on the
individual state constitutions assumption on the use of water in its natural state. Some
state constitutions, such as California and Oregon, claim the water is under control of the
sovereign. In other states, such as Colorado, water is specifically authorized for the use
of the public (subject to appropriation). There are advocates for the PTD, such as legal
scholars J. Sax, C. Wilkinson, H. Dunning, R. Johnson, and M. Blumm. At the same
time; however, there are those that do not see the same applicability of PTD, and they
include R. Lazarus, J. Huffman, and R. Walston.
As an example of PTD advocates, Sax concludes (The Public Trust Doctrine in
Natural Resource Law: Effective Judicial Intervention, Michigan Law Review ) This
Article has been an extended effort to make the rather simple point that courts have an
important and fruitful role to play in helping to promote rational management of our
natural resources. Sax continues with ...for it is demonstrable that the courts... .have
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shown more insight and sensitivity to many of the fundamental problems of resource
management than have any of the other branches of government. As a concluding
statement, Sax offers, If lawyers and their clients are willing to ask for less than the
impossible, the judiciary can be expected to play an increasingly important and fruitful
role in safeguarding the public trust.
Another PTD advocate, Michael C. Blumm (2010) of the Lewis and Clark Law
School, states, This review of representative public trust case law reveals the doctrine to
be not so much an anti-privatization concept as a vehicle for mediating between public
and private rights in important natural resources. Blumm concludes his analysis with,
Recognition of the nature of the accommodation between public and private rights that
is accomplished by application of the public trust doctrine will no doubt not assuage its
libertarian critics, but it might lead to more constructive conversations about the nature of
public rights in privately owned land.
R. Walston (1982) offers an alternative viewpoint. In the Conclusion portion of
an article, Walston states The public trust doctrine has relevance in the water rights
context, but not in the manner currently suggested by some environmental advocates.
Walston also declares, It does not, however, require that the state put such resources to a
particular use. In addition, Walston continues, Choices among competing water needs
can only be addressed under state water rights laws which have been created for that
specific purpose. In conclusion, Walston states, Therefore, environmentalists and
others who wish to influence the choice must look to conventional water rights laws, not
to the public trust. This is so, not because the trust has never been used in this situation,
but because it does not apply.
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Richard J. Lazarus is another legal scholar that offers an opinion contrary to those
supporting California and Oregons PTDs. Lazarus (1986) states in an article concerning
the Public Trust Doctrine,
Simply put, the public trust doctrine, even if aimed at promoting needed
resource conservation and environmental protection goals, is a step in the
wrong direction. The doctrine amounts to a romantic step backward
toward a bygone era at a time when we face modern problems that
demand candid and honest debate on the merits, including consideration of
current social value and the latest scientific information.
The following are recent court cases pertaining to the PTD, and are found
in (Getches, 2009):
San Carlos Apache Tribe v. Superior Court, 972 P.2d 179 (Ariz.1999):
The state holds lands beneath navigable waterways in trust for the public.
Most jurisdictions have set aside legislative attempts to defeat the trust by
conveyance or relinquishment of the publics interests in the land.
Arizona Center for Law in the Public Interest v. Hassell, 837 P.2d, 158
(Ariz. App. 1991): The above comment for San Carlos Apache also
applies to Arizona Center.
Wai ola O Moloka 7, Inc., 83 P.3d 664 (Haw.2004): In Hawaii, the court
takes a very close look at agency and legislative action to be certain that it
conforms to the public trust doctrine.
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Kootenai Environmental Alliance v. Panhandle Yacht Club, Inc., 671 P.2d
1085 (Idaho 1983): Where the doctrine applies, private uses will be
scrutinized to determine if they are inconsistent with the trust.
Marks v. Whitney, 491 P.2d 374 (Cal. 1971): The public trust doctrine has
been interpreted by states to allow protection for a variety of public uses
including navigation, commerce, fishing and hunting, bathing, swimming,
and recreation.
State v. Longshore, 5 P.3d 1256 (Wash.2000): In Washington, the public
trust doctrine does not encompass the right to gather naturally occurring
clams on private property.
R.W. Docks & Slips v. State, 628 N.W.2d 781 (Wis.2001): Denying permit
to riparian to finish construction of marina based on habitat protection was
not a regulatory taking requiring compensation.
Climate change and projected increases in population in the American
southwest necessitate a focused accommodation between all relevant parties and
conflicting water uses. Unless Denver desires to resemble Phoenix, a
modification of thinking on the parts of the courts, legislature, and the populace is
needed. For example, Colorado benefits from the South Platte River interstate
compact negotiated on behalf of Colorado citizens. The only obligation Colorado
has to downstream states (Nebraska and Kansas), other than a voluntary 3 states
agreement, between Colorado, Wyoming, and Nebraska for fish and bird
mitigation in Nebraska, is the delivery of 120 cubic feet per second to the
Nebraska stateline during the irrigation season (April 1 through October 15). If
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this amount is not met, Colorado must administer (curtail partially or entirely)
decreed water rights in Washington County, junior to June 14, 1897. This fact
offers potential for Colorado, in the South Platte River basin, to generate
innovative programs to meet future demands in terms of agricultural and other
decreed uses.
The Colorado Supreme Court does not recognize the PTD. According to
Leonhardt and Spuhler (2012), in a case involving the Colorado Water Conservation
Board (CWCB) and its responsibilities as the statutory holder of decreed instream flow
water rights on Snowmass Creek, The majoritys initial slip opinion repeatedly
characterized the CWCBs unique duties as a public trust. Leonhardt then states, In
response to a motion for rehearing, the Court revised these characterizations, deleting all
reference to a public trust, instead relying on the CWCBs unique statutory fiduciary
duty. Furthermore, Leonhardt states, Justice Mullarkeys dissenting opinion points
out the inconsistency of the majoritys rationale with Colorados historical water rights
principles, noting, This court has never recognized the public trust with respect to
water. This case was heard in 1995.
It should be pointed out in the following year, 1996, a water law/ natural
resources/ and environmental law practicing private attorney, Greg Hobbs, Esq., was
selected as the next member of the Colorado Supreme Court by then Governor Roy
Romer. To this date, Justice Hobbs has been an advocate of the state constitution
declared public property use of water in Colorado.
There have been two attempts since 2012 to have ballot initiatives concerning the
PTD placed on the statewide ballots. Both have failed. In addition, the Colorado Water
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Congress does not support such an initiative. The above discourse does not imply;
however, that Colorado does not practice and accommodate some variants of the public
trust doctrine.
According to the CWCBs website (http://cwcb.state.co.us/environment/instream-
flow-prouram/Paues/main.aspx). since 1973, ...the CWCB has appropriated instream
flow water rights on more than 1,500 stream segments covering more than 8,500 miles of
stream and 477 natural lakes. The CWCB has completed more than 20 voluntary water
acquisition transactions. As found in C.R.S. §37-92-102(3),
Further recognizing the need to correlate the activities of mankind with some
reasonable preservation of the natural environment, the Colorado water
conservation board is hereby vested with the exclusive authority, on behalf of the
people of the state of Colorado, to appropriate in a manner consistent with
sections 5 and 6 of article XVI of the state constitution, such waters of natural
streams and lakes as the board determines may be required for minimum stream
flows or for natural surface water levels or volumes for natural lakes to preserve
the natural environment to a reasonable degree.
Previously, the word fiduciary was used to describe the instream program at
CWCB, by the Colorado Supreme Court. According to the New World Dictionary of the
American Language, Second College Edition, copyright 1980, Fiduciary, is defined, adj.
trust, thing held in trust, 2. held in trust (a fiduciary property). The Colorado Supreme
Court used an interesting substitute word description, when the parallel meaning of
fiduciary implies a public property trust, as used by the CWCB to describe its instream
program.
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The following section offers a detailed discussion on the Public Trust Doctrine in
California, by analyzing the Mono Lake court decision, which is labeled a landmark
case dealing with the Public Trust Doctrine.
Mono Lake California Supreme Court Decision
Decision Analysis
The following section of this dissertation presents an analysis of the Mono
Lake decision by the California Supreme Court in 1983.
National Audubon Society et al., Petitioners, v.
The Superior Court of Alpine County,
Respondent; Department of Water and Power of the City of Los Angeles et al., Real
Parties in Interest.
33 Cal. 3d 419 (1983) 658 P. 2d 709 189 Cal. Rptr. 346
Docket No. S.F. 24368 Supreme Court of California February 17, 1983
For the State of California, the California Supreme Court Decision in National
Audubon Society v. Department of Water and Power of the City of Los Angeles, (aka
Mono Lake decision), was a catalyst for the Public Trust Doctrine (PTD) and its
relationship with the existing prior appropriation doctrine. Over time, the PTD expanded
from its original state sovereign protections on navigable streams in Illinois, to an
environmental activist banner for all matters related to environmental protection of
streams, lakes, and shorelines. The Mono Lake decision offers insight to the relationship
between the state agency discretion and expertise, judicial oversight, and the
environmental activist desire to influence both.
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The following three subsections in this dissertation present the following: (1) a
detailed analysis of the decision itself, (2) a formal legal case briefing, and (3) a summary
of the Mono Lakes decision influence on water resources management, administration,
and subsequent California judicial opinions.
Analysis of the Mono Lake Decision
The citations and references for this section are taken directly from the California
Supreme Court decision. Mono Lake is saline, contains no fish and is located adjacent to
the eastern entrance to Yosemite National Park. Ibid. p. 423. However, a large population
of brine shrimp provides a food source to nesting and migratory birds. The lake is fed by
five streams (Mill, Lee Vining, Walker, Parker and Rush Creeks) with runoff generated
from snowmelt originating in the Sierra Nevada. Ibid. p. 424. The lake has no natural
outlet.
The California Water Resources Board granted the Department of Water and
Power of the City of Los Angeles (now called Division of Water and Power DWP), a
permit to appropriate essentially all of the flow in four of the five streams flowing into
the lake. Ibid. In 1970, a second diversion tunnel was constructed that commanded
almost the entire flow of the tributary streams. Ibid.
The plaintiffs filed suit to enjoin DWP from diverting Mono Lake tributary water
on the theory the public trust protects the shores, bed and waters of Mono Lake. Ibid. p.
425. This suit, filed in superior court, was transferred to federal district court, which
requested, that the state courts determine the relationship between the public trust
doctrine and the water rights system, and decide whether plaintiffs must exhaust
administrative remedies before the Water Board prior to filing suit. Ibid. Subsequently,
60


the superior court, entered summary judgments against plaintiffs on both matters, ruling
that the public trust doctrine offered no independent basis for challenging the DWP
diversions, and those plaintiffs had failed to exhaust administrative remedies. Ibid.
After the decision of the superior court, the plaintiffs petitioned the California Supreme
Court.
As stated in the supreme court decision, this case brings together for the first
time two systems of legal thought: the appropriative water rights system which since the
days of the golf rush has dominated California water law, and the public trust doctrine
which, after evolving as a shield for the protection of tidelands, now extends its
protective scope to navigable lakes. Ibid. The court recognized the esthetic nature of
Mono Lake, but at the same time, the need for the water demands of Los Angeles.
Attempting to reconcile the two, the court opined, the core of the public trust doctrine is
the states authority as sovereign to exercise a continuous supervision and control over
the navigable waters of the state and the lands underlying those waters. This authority
applies to the waters tributary to Mono Lake and bars DWP or any other party from
claiming a vested right to divert waters once it becomes clear that such diversions hard
the interests protected by the public trust. Ibid. p. 426. The court recognized there are
needs of the state, to divert water unconnected to any navigation, commerce, fishing,
recreation, or ecological use relating to the source stream. Ibid. At the same time, the
court also recognized The state must have the power to grant nonvested usufructuary
rights to appropriate water even if diversions harm public trust uses. The court advised
the state agencies and the public trust advocates, attempt to minimize harm to each
partys interests. Ibid.
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The California Supreme Court acknowledges the experience and expertise of
the Water Board and its standing as the primary agency responsible for water matters.
However, in this decision, the court held courts have concurrent jurisdiction in water
right controversies. The Legislature, instead of overturning that precedent, has implicitly
acknowledged its vitality by providing a procedure under which the courts can refer
water rights disputes to the water board as referee. Ibid. Thus, the matter of water
allocation and administration in California is the purview of administrative agency
authority, along with the concurrent powers of the courts and legislature. This
declaration appears to illustrate a new power of the courts, where previously, an
administrative agency was the primary authority. The court implicitly ranks itself as
primary authority, when it stated, We therefore conclude that the courts may continue to
exercise concurrent jurisdiction, but note that in cases where the boards experience or
expert knowledge may be useful the courts should not hesitate to seek such aid. Ibid.
The court had three aspects of the PTD to consider and offer an opinion: (1) the
purpose of the trust, (2) the scope of the trust as it applies to the tributaries of Mono Lake,
and (3) the powers and duties of the state as trustee of the public trust. Ibid. p. 434. The
court, in this case, relied in part, on their opinion in Marks v. Whitney, supra, 6 Cal. 3d
251. The court decided relative to Mono Lake, The principle values plaintiffs seek to
protect, however, are recreational and ecological-the scenic views of the lake and its
shore, the purity of the air, and the use of the lake for nesting and feeding by birds. Under
Marks v. Whiney, it is clear that protection of these values is among the purposes of the
public trust. Ibid. Thus, in California, the scope of the public trust doctrine has
expanded to incorporate a growing concern of the welfare of the environment.
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The court relied on People v. GoldRunD. &M. Co., supra, 66 Cal. 138 (4P.
1152) and People v. Russ (1901) 132 Cal. 102 (64 P. 111), to formulate their opinion on
the present case, relative to whether the Public Trust Doctrine applies to upstream
tributaries of Mono Lake. Ibid. p. 436. In Gold Run, the court recognizing that its
decision might destroy the remains of the states gold mining industry, the court affirmed
an injunction barring the dumping (of 600,000 cubic yards of sand and gravel annually
into the north fork of the American River) ... stating, the dumping was an unauthorized
invasion of the rights of the public to its navigation. Ibid. In Russ, the court directed a
lower court to make a finding relative to the impact of constructing dams on the
navigability of a downstream river or lake. Ibid. As a result of these two aforementioned
cases, the court stated, We conclude that the public trust doctrine, as recognized and
developed in California decisions, protects navigable waters from harm caused by
diversion of non-navigable tributaries. Ibid. p. 437.
Relative to the state and the public trust doctrine, this court supported, the
continuing power of the state as administrator of the public trust, a power which extends
to the revocation of previously granted rights or to the enforcement of the trust against
lands long though free of the trust. Ibid p. 440. The theme throughout the California
Supreme Court decision was one of the preeminence of state sovereignty, supported by
the expertise and experience of state administrative agencies and the parallel power of the
courts.
The court explored, examined, and commented on the relationship between the
California water rights system and the Public Trust Doctrine in their decision. Ibid., p.
445. While the followers of the public trust doctrine declare the prior appropriation
63


doctrine is subservient, the water board considers the public trust doctrine to be
subservient to the prior appropriation doctrine. The California Supreme Court, however,
is unable to accept either position. Ibid. The court further stated, ... .both the public
trust doctrine and the water rights system embody important precepts which make the law
more responsible to the diverse needs and interests involved in the planning and
allocation of water resources. Ibid.
The court reached the following three conclusions; (1) The state, as sovereign, has
supervisory control via the public trust doctrine, over the flowing waters, and therefore,
can prevent any party from acquiring a vested right to appropriate water in a manner
harmful to the interests protected by the public trust. Ibid. (2) However, the court also
recognized, the legislature, acting directly or through an authorized agency such as the
Water Board, has the power to grant usufructuary licenses that will permit an
appropriator to take water from flowing streams and use that water in a distant part of the
state, even though this taking does not promote, and may unavoidably harm, the trust
uses at the source stream. Ibid. p. 446. The court recognizes the economy and
population centers in California have relied upon such appropriations, and it would be an
uneven thought that such appropriations are and have always been improper that they
harm public trust uses... Ibid. (3) Finally, and possible the central theme of the
decision, the court finds, The state has an affirmative duty to take the public trust into
account in the planning and allocation of water resources, and to protect public trust uses
whenever feasible. Ibid. p. 446. Furthermore, and possibly the paramount opinion
made by the court in this decision is the following statement on page 448, It is clear that
64


some responsible body ought to reconsider the allocation of the waters of the Mono
Basin. Ibid.
Section 6, located on page 452, of the court decision contained the conclusion.
The court found, The public trust doctrine and the appropriative water rights system are
part of an integrated system of water law. The court further stated, We replay that
plaintiffs can rely on the public trust doctrine in seeking reconsideration of the allocation
of the waters of the Mono Basin. Ibid. In the final paragraph of the opinion, the court
stated, This opinion is but one step in the eventual resolution of the Mono Lake
controversy. We do not dictate any particular allocation of water. Ibid.
This decision upheld the public trust doctrine as applying to non-navigable
waterways and, in California, added this doctrine of protecting the environment, as co-
equal to the needs of water appropriators. To the extent, this decision is foundational to
subsequent water allocation decisions, has been studied extensively and is contained in
the following section of this dissertation.
This section of the dissertation contains a legal brief of the Mono Lake case. A
legal case brief separates a case into the following component parts: (1) brief summary of
the case, (2) rule of law, (3) facts, (4) issue(s), (5) the opinion of the court, and (6)
discussion. The following section of this dissertation is a case brief for the National
Audubon Society v. Superior Court. The brief was developed from the California
Supreme Court decision discussed and presented earlier in this dissertation.
Case Brief
National Audubon Society v. Superior Court
Citation 22 III. 33 Cal. 3d 419, 189 Cal. Rptr. 346, 658 P.2d 709, 21 ERC 1490 (1983)
65


Brief Fact Summary: The Department of Water and Power for the City of Los Angeles
constructed structures to divert water from four of the five tributaries flowing into Mono
Lake. The impact of these historic diversions decreased the size of Mono Lake (a saline
water body) and the ecology of the lake.
Rule of Law: The public trust doctrine whenever possible, is considered by the State of
California in the planning and allocation of the states water resources.
Facts: Five live streams feed into Mono Lake and they Mill, Lee Vining, Walker, Parker,
and Rush Creeks. Snowmelt from the Sierra Nevada Mountains feed the streams, and the
Department of Water and Power for the City of Los Angeles (DWP) obtained a permit to
appropriate the entire flow from four of the five streams. In 1970, the DWP constructed
another diversion structure to divert most of the flow from all five streams. Mono Lake is
a saline water body that supports brine shrimp that supply food to nesting and migrating
birds. The volume of water in Mono Lake has been reduced by one-third because of the
tributary stream diversions. One result of the decreased info, is the development of a
peninsula, where historically two islands were situated within the boundary of the lake.
Predators are now have access to the migrating birds because of the peninsula. The
plaintiffs in this case, filed suit to stop the DWP diversions on the theory that a public
trust protects Mono Lake.
Issue: Does a public trust invalidate the City of Los Angeles use of Mono Lakes
tributary streams?
Held: The legislature granted the California Water Resources Board the power to grant
use licenses that permit appropriation of water from streams, even if the use results in
66


harm to trust uses at the source stream. The court recognized the conflict between the
public trust doctrine and its historic beginnings to the current application in the present
case, to protect Mono Lake. The court recognized the population and economy of
California rely on the appropriation of large quantities of diverted water, whereupon the
court decided the state has an affirmative duty to take into account, public trust uses
whenever feasible. The court ordered a study be prepared to evaluate the impact of the
stream diversions upon the public trust of Mono Lake.
Discussion: The court had to reconcile two conflicting practices, the first being the prior
appropriation doctrine, and the second, the public trust doctrine. The court found that
neither concept negated the other.
Post Mono Lake Decision Statistical Analysis
After the Mono Lake decision by the California Supreme Court in 1983, based
upon the specific comments and opinions of the court, a reasonable assumption would be
the impact of the case would be influential on subsequent related cases. In his research of
post Mono Lake cases, Owen found surprising and interesting results. (Owen, 2012)
There were existing U.S. federal environmental laws, including the Clean Water Act and
Endangered Species Act, which coupled with the Mono Lake decision that could frame
future court opinions and form a new foundation for environmental doctrine activism.
The California Supreme Court, in the Mono Lake decision, found that state
agencies and courts were obligated, whenever feasible, to protect public trust resources,
when dealing specifically to water. Ibid p. 1101 The decision was hailed as revolutionary
and having set a new standard, and in 2001, a poll of law professors ranked the Mono
Lake Case as the sixth most excellent case in the history of American environmental
67


law. Ibid The question Owen researched, was how much influence on judicial
decisions, did Californias public trust doctrine, have on post Mono Lake court opinion.
Owen reviewed all the orders and decisions of the California State Water Resources
Control Board (CWRCB and all cases then available on Lexis or Westlaw. Ibid p.
1103 He specifically analyzed the context of the decisions to assess if, in fact, the court
or agency relied upon the public trust doctrine as the basis for compelling environmental
protection. Ibid
The following listing provides a summary of findings by Owen. For clarity,
direct quotations, when appropriate, are used.
The PTD had little significance in the courts. No court cited the PTD as a
reasoning for ordering anyone to do anything. Ibid. p. 1104
Most judicial discussions of the doctrine have been brief, and the few detailed
opinions have not offered any doctrinal expansion. Ibid. p. 1105
On the state agency level, however, there is evidence of more direct influence.
In approximately half of its decisions and approximately eight percent of its
order, the Board cites the public trust doctrine as a basis for environmentally
protection restrictions on water use. Ibid.
.. .though the precise level if importance is impossible to discern, the public trust
doctrine appears to exert much less influence than statutory environmental laws.
Ibid.
The doctrine is thoroughly integrated into the states statutory and administrative
environmental law system, and has accomplished little outside of it. Ibid. p. 1106
68


Although state law governs the CWRCBs actions, the Board also acts in the
shadow of federal requirements. Perhaps the most important come from the
federal Endangered Species Act. Ibid. p. 1117
The agency has been chronically underfunded... .and it has an enormous backlog
of unprocessed water rights applications. Ibid.
Courts play a somewhat secondary role in environmental policymaking; because
of deferential standards of review, most disputes are won or lost before
administrative agencies. Ibid. p. 1129
One of the Mono Lake Cases most heralded holdings is that the CWRCB has a
continuing obligation to re-examine and, sometimes, adjust existing water rights.
On very rare occasions, it has done so. Ibid. p. 1134
In summary, Owen found pre-existing water rights are generally secure from
public trust doctrine intervention. However, the non-uniform direct application of the
public trust doctrine in California court decisions illuminates the uncertainty of how best
to manage water resources. For water managers and state agencies responsible for water
administration, the unclear application of a heralded landmark court decision, adds to the
unstable nature of resource allocation and planning. Now there are several players in
California water resources management and resource allocation including the state courts,
the state Supreme Court, the CWRCB, the state legislature, the Governors Office,
environmental activist organizations, existing federal environmental laws and agencies,
and the ultimate water users. Each has a part in effective natural resource stewardship,
however, if discreet boundaries are not set, chaos, uncertainty, and inefficiencies may
result.
69


Comments on Chapter III
Colorado Governor Hickenlooper recently signed a directive for the Colorado
Water Conservation Board to develop a draft statewide water plan by December 2014
and the final plan by December 2015. If Colorado continues to rely on the state
constitution dictated property characteristic of use of water by the public and rely
strictly on the covenants of the prior appropriation doctrine, the results may conflict if a
Public Trust Doctrine is voted in by Colorado voters.
With climate change and its predicted reductions in stream flow and increased
temperatures, and the Federal Governments usurping powers via Endangered Species
Act and Water Quality Act, it is best for Colorado to be prepared to react proactively and
modify what is necessary to enable reasonable and prudent management of its water
resources. As the stewards of its own resource, Colorado cannot afford to do less.
The Colorado Water Conservation Board, in this authors opinion, is the state
agency that should be legislatively assigned (with consultation with the Colorado
Division of Water Resources) the overall duties and responsibilities of managing the
states water resources (both surface and groundwater) and have the legislated authority
to render decisions concerning use, place of use, places of storage, during times of
declared drought. In addition to the water courts being consulted, the Colorado Division
of Water Resources should also be consulted as to whether the proposed decision of the
CWCB can be practically administered. CWCB should also have sufficient funds to buy,
trade, lease water rights from agreeable decreed water right holders.
70


CHAPTER IV
FLOW THROUGH POROUS MEDIA, AQUIFER STORAGE AND RECOVERY
(ASR), AND A CASE STUDY
This chapter of the dissertation will present basic alluvial fluid hydraulics, current
practice and methodology of aquifer storage and recovery, worldwide, in the U.S.A. and
a Case Study. According to the EPA, as of 2009, there were 748 project sites containing
wells used for aquifer recharge and aquifer storage and recovery. (EPA, 2009)
This discussion of ASR includes the diversion structure from the surface water
source, buried pipe flow from the diversion structure to the storage vessel, fluid flow
within the perforated piping in the storage vessel, flow within the alluvial material, and
flow out of the storage vessel via a pumped well discharge back to the surface water
source.
Diversion Structure Hydraulics
A possible diversion structure from a river or stream can involve a concrete box
with an operable vertical slide gate or an uncontrolled trapezoidal weir, square weir, with
an outlet conveyance pipe connected directly to the diversion structure. Each design
must fit the needs of the end user and therefore there are various design options available.
The slide gate can be controllable via electronic means, or an onsite wheel mechanism to
physically open or close the slide gate.
In areas where surface water source quality is an issue, a below grade stream
collection infiltration gallery can be designed to offer preliminary water treatment
including solids removal. As an alternative, an adjacent well can be drilled near to the
71


stream, which also provides a reliable water supply while also providing preliminary
water treatment.
The weir equation can determine the flow through such diversion structures. A
form of the equation is:
Q = CwLh32
where Cw is a coefficient that accounts for the velocity of approach, L is the length of the
weir, and h is the head above the crest of the weir. Various types of weirs include the
broad-crested weir, Cipolleti weir, proportional weir, side-flow weir, and submerged
weir. (Linsley et al, 1992)
Often in Colorado, stream diversion structures have recording devices to transmit
via satellite, flow data to State water administrators who can view real time flow values
via computer.
Later in this chapter, water quality issues are addressed to illustrate conditions for
the satisfactory operation of an ASR facility. Accordingly, water pretreatment facilities
at the diversion point, maybe required and therefore, the hydraulics of the stream
diversion could be complex.
Delivery Pipe Flow Hydraulics
Bernoullis equation predicts hydraulic properties of fluids between different
starting and ending elevations. The equation contains an elevation head component, a
pressure head component, velocity head component, and a term for energy loss due to
piping bends, lengths, and pipe material. Bernoullis equation applies to hydraulic
systems, when comprised of fluid within a pipe. If the starting elevation of a pipe is
72


higher than the ending elevation of the same pipe, it is possible to determine the flow rate
and pressure of the fluid at the lower elevation of the pipe.
For example, if a pipe connects points A and B, (A is higher in elevation than B),
with no exposure to atmospheric pressure and is under constant pressure between both
points, as a result of the conservation of energy principle, these terms are equal to each
other when comparing the beginning and ending points as shown in the following
equation:
Za + Pa/v + Va2/2g = Zb + Pb/v + Vb2/2g + hi
Where Za-Zb = the vertical distance between points A and B, P/v is the pressure head, V
is the velocity of flow, and hi is the total head loss between the high point A and the low
point B.
Hydraulics of Perforated Pipe Under-Drains
Murphy (2013) evaluated hydraulic performance of perforated pipe under-drains
when surrounded by loose aggregate as partial fulfilment of the requirements for the
Degree Master of Science Civil Engineering at Clemson University. He performed the
work to evaluate hydraulic performance of perforated pipes since the stage storage
relationship is complex and not well understood. Murphy identified the complexity of
various flow regimes, including fluid flow through the porous media (aggregate), orifice
flow into the pipe, and finally, pipe flow laterally along the length of the pipe.
Murphy (2013) concluded in the saturated flow condition, flow direction is
vertical when the water surface is parallel to the pipe. In the unsaturated condition, the
73


water level decreases along the channel and the direction of flow is predominately lateral
toward the pipe outlet. He concludes with the following.
Therefore, it is irrelevant if the aggregate within the trench is completely
saturated (as it was defined in the experimental results) to determine if the
flow condition is saturated or unsaturated. Thus, it becomes completely
dependent upon whether the water surface profile above the pipe is
parallel to the pipe (saturated) or not (unsaturated) and if the pipe is
flowing full at the outlet.
For the saturated condition, Murphy (2013) found Darcys law and pipe head loss
equations are used to develop an equation for flow rate when compared to water height
above the aggregate cover.
Flow Through Porous Media Fundamentals
Darcys Equation
ASR vessel hydraulic flow through a porous media can be described by Darcys
equation. The following material was presented by (Bedient, 2014) in a lecture on
Darcys Law and Flow, at Rice University.
Developed in 1856 by French engineer, Henri Darcy, developed empirically the
flow of water through a permeable formation (sand) is proportional to the distance from
the top and bottom of a soil column, and the hydraulic conductivity (K) is the constant of
proportionality. In equation form:
V=-K(Ah/AL), and knowing that Q=VA, with A = total area, therefore:
Q=-KA(dh/dl),and note the negative sign results from going from a higher to lower
energy level.
74


Ranges of K, which represents a measure of flow ability through porous media, are as
follows:
Gravels O.ltolcm/sec
Sands - 10'2 to 10'3 cm/sec
Silts - 10'4 to 10'5 cm/sec, and
Clays- 1 O'7 to 1 O'9 cm/sec
From Bedients lecture, Darcys law holds for:
1. Saturated flow and unsaturated flow
2. Steady-state and transient flow
3. Flow in aquifers and aquitards
4. Flow in homogeneous and heterogeneous systems
5. Flow in isotropic or anisotropic media, and
6. Flow in Rocks and granular media
The Darcy and seepage velocity is not accurate since it assumes the flow occurs
uniformly across the flow cross section. In reality, the flow takes place in the
interconnected pore channels. (Bedient, 2014).
McKinney presented a lecture at the University of Texas on Darcys Law and
focused on aquifer storage properties, Darcys experiment, hydraulic conductivity,
heterogeneity and anisotropy, refraction of streamlines and generalized Darcys Law.
Aquifer Storage
Figure 2 from McKinneys lecture illustrates 1) Storativity (S), the ability of an
aquifer to store water, 2) the change in volume of stored water due to change in
75


piezometric head, and 3) the volume of water released from an aquifer per unit decline in
piezometric head.
Figure 2- Unit Water Released from an Aquifer Under a Unit Head in Decline -
(McKinney, 2014)
The alluvium of the South Platte River basin, located adjacent to and under the
flowing stream, is considered an unconfined aquifer since the water is produced by
draining pores and there is no confining layer above the alluvial materials. The
storativity of an unconfined aquifer (Sy specific yield) depends on pore space drainage.
(McKinney, 2014) The water that remains in the pores is specific retention, Sr.
Therefore, Sy = Sr, where is porosity. Porosity is defined as the (volume of the
void space)/ (total bulk volume). Therefore, Vdrained = SyAhA.
McKinney presents a graphical relationship between porosity, specific yield, and
specific retention and is illustrated on Figure 3.
76


Porosity, Specific Yield, & Specific Retention
Sr-*Sy
Figure 3 Relationship between Porosity, Specific Yield, and Specific Retention for a
Range of Soils (McKinney, 2014)
McKinney provided a summary of the Darcy experiments and is shown on Figure
4.
Darcy's Experiments
Discharge is
Proportional to
- Area
- Head difference
Inversely proportional to
- Length
Coefficient of
proportionality is
K- hydraulic conductivity
Oo: A
L
0 = -KA^
L
Figure 4 Darcys Experiment Schematic From Lecture (McKinney, 2014)
The results of Darcys experiment are illustrated on Figure 5.
77


Darcy's Data
9
Q
A
Figure 5 Darcys Experimental Results Illustrating Value of Hydraulic Conductivity K,
is a Constant for a Given Material (McKinney, 2014)
McKinney presented two slides on hydraulic conductivity and are presented on
Figure 6 and Figure 7.
Hydraulic Conductivity
Has dimensions ofvelocity [L/T]
A combined property ofthe medium and the fluid
Ease with which fluid moves through the medium
K = ky-
p
k = cdz intrinsic permeability ] Porous medium property
fi = density
^ = dynamic viscosity L Fluid properties
7 = specificweight 1
Figure 6 Hydraulic Conductivity Lecture Slide (McKinney, 2014)
78


McKinney presented a detailed schematic of hydraulic conductivity (K) for a
variety of materials and K values with different units and is presented as Figure 7.
Hydrauli
Rocks Unconsol klnlcd Deposits k k (cm2) K K
(dare/) [enVs) (riVs)
a>
E
3
1
h
2a
= E
S3
iT E
1
E
33
£
£
1
&
Is
Ml#
li s
*s> i
II
i 1
I
I
I
h |
3
£ I
E Q-
S E
5
[ i?
a
1
. 5
s Y
i
10s
101
-Iff1
-102
10
1
-Iff-
-10-2
-Iff'1
-Iff"4
-10-'
-10-*
-10'7
-Iff
10!
10'*
10's
10'B
, 10-'
10_B
10-'
10-:S
10-11
- ID"11
ioiJ
io-:*
10'"
-nr16
10*
10
l
101
10J
10-J
10"4
10-'
10-*
1ff'T
10-*
10-'
-Iff'1*
t0'M
K
(jjaJj'day.nt2)
10*
IQ4
Iff1
Iff1
Iff2
-10
1
-10-'
10-2
1
10*'
-Iff1
10'*
10-s
10-
10-'
10B
-10-'
b O'1
- io-D
.10-1 r-*
-10'11 '10
io l-,Q"
Iff-
Figure 7 Hydraulic Conductivity for a Variety of Soil Types (McKinney, 2014)
Soil Survey Technical Note 6 | Natural Resources Conservation Service,
Saturated hydraulic Conductivity: Water Movement Concepts and Class History, states
that in Darcys law, saturated hydraulic conductivity is a constant as illustrated by Figure
8.
79


Figure 8 Illustration Showing the Constant Nature of Hydraulic Conductivity K
(NRCS)
There exists a liner relationship between the variables J and I and the slope of the
line (J/I) illustrates the relationship between flux and hydraulic gradient. The flux
represents the quantity of water moving in the direction of the hydraulic gradient. The
hydraulic conductivity, or slope K, defines the unidirectional flow in saturated flow.
(NRCS) Flux is a rate and hydraulic gradient is the force behind the flux, and the
hydraulic conductivity is the proportionality constant that defines the two variables.
Permeability is a term that has three separate, but related meanings: The
following definitions are found in NRCS Technical Note 6.
1. In soil science, permeability is defined qualitatively as the ease with
which gases, liquids, or plant roots penetrate or pass through a soil mass
or layer (SSSA, 2001).
80


2. "Intrinsic permeability" or permeability (k) is a quantitative property of
porous material and is controlled solely by pore geometry (Richards,
1952). Unlike saturated hydraulic conductivity, intrinsic permeability is
independent of fluid viscosity and density. It is the soils hydraulic
conductivity after the effect of fluid viscosity and density are removed. It
is calculated as hydraulic conductivity (K) multiplied by the fluid
viscosity divided by fluid density and the gravitational constant.
Permeability (k) has the dimension of area (e.g., cm2).
3. In some cases, permeability has been used as a synonym for Ks, even
though some other quantity was originally used to convey permeability.
For example, in the permeability studies by Uhland and O'Neal (1951),
flux (under hydraulic gradient greater than one) was the true quantity
measured to convey a soils permeability. Darcys law demonstrates that
flux is numerically equal to Ks only when the hydraulic gradient is equal
to one. Therefore, the flux values reported in these studies were not
synonymous with Ks. Over time, however, the original flux values from
Uhland and ONeal became misrepresented as Ks without qualification.
This misrepresentation has led to confusion and misapplication.
NRCS Technical Note 6 states the following characteristics when comparing
Saturated Hydraulic Conductivity (Ks) and Intrinsic Permeability (k). Ksis temperature
dependent while k is not. Ks is fluid viscosity dependent while k is constant regardless of
fluid viscosity. Both saturated hydraulic conductivity and permeability changes with
change in structure. Finally, Ks dimensions depend on flux and gradient and time is a
81


2
component, as compared to intrinsic permeability where dimensions are length while
time is not a component. (NRCS)
The material presented herein applies to the present study of alluvial storage and
recovery in the South Platte River basin in Colorado. Groundwater models, such as
MODFLOW (a 3-dimensional modular finite difference groundwater model) are based
upon mass balance and Darcys equation, where the flow of groundwater can be
predicted based upon soil parameters such as hydraulic conductivity, geometric
measurements of area and sample length, and difference in energy levels. MODFLOW
modeling was used as part of this research and the results are presented in Chapter VF
The next section provides a summary of ASR facilities worldwide and in the US.
Alluvial Storage and Recovery International
Subsurface dams are not a new concept. Ishida, et al (2011) compiled the
following data on existing ASR facilities and is presented in Table 1.
82


Table 1 Listing of Alluvial Storage and Recovery Projects World Wide (Ishida et al,
2011)
Country Dam name Dam type Construction period Dam beight(m) Dam lengthen) Total reservoir (1,000 m3) Construction method for cut-off wall
Japan Kabashima subsurface 1973,1979-80 24.8 58.5 20 Grouting
Minafuhi subsurface 1977-1979 16.5 500 700 Grouting
Tsunekami subsurface 1982-1984 21.5 202 73 SlurrY wall
Tengakuma subsurface 1987-1988 12.5 129 17 Grouting
Rvorigawa subsurface 1991 4.2 151.6 42 Thin steel sheet
Nafcajima subsurface 1991-1992 24.8 88 27 Mix-in-place
Waita subsurface 1991-1992 7.5 105.3 12 Slum wall
Sunauawa subsurface 1988- 1993 49 1677 9,500 Mix-in-place
Miko subsurface 1995 39.3 192 23 Mix-in-place
Shitoro subsurface 1997 8.5 44.1 18 N.A.
Fukuaato subsurface 1994-1998 27 1790 10,500 Mix-in-place
Kikai subsurface 1993-1999 35 2281 1,800 Mix-in-place
Giiza subsurface 1999-2001 53 969 390 Mix-in-place
Komesu subsurface 1993-2003 69.4 2,320 3,460 Mix-in-place
Kaniin combined'1 1995-2005 52.1 1,088 1.580 Mix-in-place
Yokatsu subsurface 1999-2008 67.6 705 3.963 Mix-in-place
Ie subsurface 2004- 55.9 2612 1,408 Mix-in-place
Izena subsurface 2005-2008 14 488.4 238 Steel sheet pile
Okinoerabu subsurface 2007- 48.2 2414 1.085 Mix-in-place
Nafcahara subsurface 2009- 55 2350 10,500 Mix-in-place
Bora subsurface 2009- 26 2600 2,200 Mix-in-place
Korea Eean subsurface 1983 5-7 230 4,143 Grouting, concrete wall
Namsong subsurface 1986 10-20 89 4,017 Grouting
Okseong subsurface 1986 10 482 2,850 Grouting
Gocheon subsurface 1986 7.5 192 1,543 Ferroconcrete wall
Wooeel subsurface 1986 6-7 778 2,457 Clay wall
Ssangcheon subsurface 1995-1998, 2000 4-27 840 NA Slurry wall, concrete wall
China Balisha River subsurface -1987 N.A. 756 NA Grouting
Huanashui River subsurface -1995 40.1 5,996 NA Grouting
Dragon River subsurface -2000 N.A. N.A NA Directional jet Ejoutina
Jia River subsurface -2001 31 3,890 NA Grouting
Wang River subsurface -2004 N.A. 13,500 NA Grouting
Daau River subsurface -2004 N.A. 2,600 NA Clav wall
India Anangana subsurface 1979 5 160 15 Plasteredbrick, tarred felt, plastic sheet
Ottapaiam subsurface 1962-1964 5-9 155 NA Plasteredbrick
Ootacamund combined 1981 3.5 N.A NA Plastic sheet
Shenbagathope subsurface'' sand storage 1987 3.5 15 NA Stone masonry
Ethiopia Bombas Gursum sand storage subsurface 1981 1981 3.8 N.A NA NA Concrete block Stone masonry
Buritna -Faso Kate subsurface 1997-1998 3-11 210 1,800 Buried earth dam
Brazil about 500 dams subsurface 1990s 3-110 N_A NA NA
Kenya about 500 dams subsurface^ sand storage 1990s NA N.A NA Filled with bricks, stones, mortar
U.S.A Pacoima Notch subsurface (submerged) 1988 15.6 165 N.A Rubble masonry7
suiface'subsurface
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Hanson and Nilsson (1986), classified underground dams into two types: those
that are constructed below ground level that stop the flow of a natural aquifer, and (2)
sand storage dams where the sand behind the above ground impermeable barrier, stores
the water.
Figure 9 from the Ishida article, depicts two types of underground dams.
Figure 9 Two Section Views of Underground Dams (Ishida et al, 2011)
Underground Water Storage in Australia
Australia has a concentrated effort in maximizing storage of water underground
due to reoccurring droughts. (Simmons, 2014) Groundwater is Australias main fresh
water source. Managed Aquifer Recharge (MAR) is a program that the country has
adopted as a mainstay in their water resources management. MAR is also known as
water banking, where water is stored underground when not needed and then pumped to
the surface in times of drought. Australia relies on underground storage since
evaporation rates often exceed annual rainfall. Various schematics of MAR designs are
presented below. Figure 10 is from page 5 of the MAR report, and the source of the
figure is Martin and Dillion, (2005), extended in EPHC, 2008.
84


ASF
astr
fercolatlon Tank______________^_______________________Rainwater Harvesting
Figure 10 Section Views of Various ASR Configurations (Martin et al, 2005)
From the Australian MAR (managed aquifer recharge) program (MAR report
page 2):
Common reasons for using MAR include:
Securing and enhancing water supplies
Improving groundwater quality
85


Preventing salt water from intruding into coastal aquifers
Reducing evaporation of stored water, or
Maintaining environmental flows and groundwater-dependent ecosystems, which
improve local amenity, land value and biodiversity.
Consequential benefits may also include:
Improving coastal water quality by reducing urban discharges
Mitigating floods and flood damage, or
Facilitating urban landscape improvements that increase land value.
Martin and Dillon, have moved Australia in the forefront at the international
leading edge in the design and implementation of ASR schemes that use low quality
waters injected into, and stored in, aquifer of low transmissivity.
Martin and Dillion summarized the advantages and disadvantages of 1) recharge
wells, 2) infiltration basins, and 3) bank filtration. Table 2 and Table 3 summarize their
findings.
86


Recharge Wells
Table 2 Recharge Advantages and Disadvantages to Deep Aquifers Using Wells
(Martin et al, 2005)
Recharge enhancement to deep aquifers using wells
Advantages
Injection and recovery rates can be
mechanically controlled to ensure desired
rates are obtained
Relatively small space required for installation
of well
Recovery efficiency (the volume of injected
water that meets the enduse requirements) is
typically greater than 50% on first injection
and recovery cycle for sedimentary aquifers
Recovery efficiency improves with successive
injection cycles
Treatment works can be some distance from
injection wells
Opportunities to use existing infrastructure to
redistribute water
Opportunities to use existing infrastructure to
deliver treated water to injection sites
In sedimentary aquifers the injected water
remains in close proximity around the well
making it easy to clean up in the event of
contamination.
Variety of methods of treatment for the source
water.
Only economic method of accessing confined
aquifers.
Disadvantages
Clogging of aquifer matrix or screens from
either fine particulate matter or from
microbiological activity
Large surface storages may be required to
capture source water from creeks or
stormwater if recharge rates are slow.
Recovery efficiency can be as low as 10%
from fractured rocks.
Geochemical interactions between rock and
injected water may affect quality of recovered
water.
Well collapse through dissolution of aquifer
matrix.
Over-pressure may result in failure of the
confining bed separating aquifers.
On recovery, continual production of fine
aquifer material causing pumps to seize.
Well failure after only a few years of operation
requiring new replacement wells to be drilled.
Potential changes in contaminate loads if
source water is from urban or rural catchment
runoff.
In a fractured rock aquifer little control on
direction and distance injected water may
travel.
Backwash waters need to be discharged.
The summary of ASR, from Martin et al, using infiltration basins is presented on
Table 3.
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Table 3 Recharge Enhancement Using Infiltration Basins Advantages and
Disadvantages (Martin et al, 2005)
Recharge enhancement using infiltration basins
Advantages
Can be relatively low maintenance
Simple and effective system
Improved water quality
May reduce the need for treatment of
recovered water.
Increased hydraulic gradients leading away
from beneath the infiltration basin that may
result in greater discharge to surface water
bodies.
Maximised recharge rates
Disadvantages
Requires periodic drying out and scraping to
maintain infiltration efficiency
r Large areas required for construction of
infiltration basins
Water may be subject to reinfection from
birds/animals
May require chemical additives to control
algae growth
Some loss of supply to evaporation
Expensive to construct above ground storage
appropriate for the conditions
If water table not deep enough below ground
surface water logging may result
Can increase discharge to surface water
bodies
For the purposes of pre-treatment, Martin et al (2005) found bank filtration have
the following advantages:
Removal of particles, bacteria, viruses and parasite,
Removal of easily biodegradable compounds, including algal toxins,
Reduction of persistent organic contaminants and heavy metals, and
Attenuation of demand and supply concentration peaks.
Underground Dams in Brazil and Kenya
A summary report of underground dams in Brazil and Kenya was performed by
Foster and Turnoff, and was sponsored by the World Bank in 2004. Figures 11 and 12
are pictures of a subsurface dam constructed in Brazil followed by a mature sand dam in
Kenya.
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Figure 11 and Figure 12 ASR Projects in Brazil and Kenya, (Foster et al, 2004)
The dam in Brazil, shown on Figure 11, is cut into the alluvial cover to intercept
groundwater flow and the Kenya sand dam shown on Figure 12, is built in a streambed
and a sediment saturated aquifer is formed upstream of the dam embankment.
Brazil Underground Dams
The World Bank report by Foster and Tuinhof report that during the 1990s many
dams, similar to Figure 11, were constructed and are characterized by the following
descriptions:
1. small structures up to 3 m deep constructed under government drought
emergency job-generating programs at sites selected by municipal committees
without technical advice and follow-up; they were manually excavated,
incorporated plastic membranes and a large-diameter concrete-ring waterwells
2. Similar-sized structures constructed under local initiative by NGOs with specialist
advice, but were filled with only recompacted clay and without a well for water
abstraction.
3. Much larger structures up to 10 m depth (in acres of thicker alluvial cover)
located by technical criteria and constructed with the aim of supporting small-
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Full Text

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ALLUVIAL STORAGE AND RE COVERY IN THE SOUTH PLATTE RIVER BASIN IN COLORADO A DESIGN APPROACH by WILLIAM CHARLES MCINTYRE B.S., Colorado State University Pueblo, 1973 M.S.C.E. University of Colorado, Boulder, 1975 M.B.A., Regis University, Denver, 1984 M.S.C.E., University of Colorado, Denver, 1989 A thesis submitted to the Faculty of the Graduate School of the University of Colorado in partial fulfillment of the requirements for the degree of Doctor of Philosophy Enginee ring and Applied Science 201 5

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201 5 WILLIAM CHARLES MCINTYRE ALL RIGHTS RESERVED

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This thesis for the Doctor of Philosophy degree by William Charles McIntyre has been approved for the Engineering and Applied Science Program by Kevin L. Rens Advisor David Mays Chair Lynn Johnson Indrani Pal Dick Wolfe Paul Flack April 23, 2015 ii

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McIntyre, William Charles (Ph.D., Engineering and Applied Science) Alluvial Storage and Recovery in the South Platte River Basin in Colorado A Design Approach Dissertation directed by Professor Kevin L. Rens. A BSTRACT I ssues involving the private property status of water rights and the Public Trust Doctrine ; state agencies caught between science uneven legislation and the water court process ; over appropriation of a finite resource ; the conflict between additional water storage structures and threatened and endangered plant and animal species ; all shape the future of water resources engineering a nd public policy in Colorado. Surface water and groundwater administration in Colorado currently finds itself under additional operational and institutional impediments. Within the next 25 years, the current state population is expected to increase by 60% and climate change is predicted to decrease the usable water supply. In addition attempts via the state ballot initiative to declare the Public Trust Doctrine as the keystone of Colorado water resource management and allocation have r esulted in renewed efforts to develop strategic solutions to address these issues. With these new boundary conditions, Colorado must revisit its unique water administrative directives its method of storing and conserving available water supplies, and d evelop a strategy to address the Public Trust Doctrine while concurrently accommodating the water needs of animal and plant species as directed by the US Federal government. iii

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This research effort evaluates and proposes an engineering design, law and policy initiatives, and conjunctive use reforms due to the impending challenges facing water resources management, policy, and administration in the South Platte River basin of Colorado. The form and content of this abstract are approved. I recommend its publication. Approved: Kevin L. Rens iv

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DEDICATION This journey is dedicated to my son Keith and daughter Erin, who are my pride, joy, and inspiration. v

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TABLE OF CONTENTS CHAPTER I INTRODUCTION 1 II ELEMENTS OF WATER RESOURCES 1 1 ADMINISTRATION IN COLORADO III JUDICIAL RESPONSIBILITIES IN COLORADO 2 9 WATER RESOURCES AND THE PUBLIC TRUST DOCTRINE I V FLOW THROUGH POROUS MEDIA AQUIFER STORAGE AND RECOVERY (ASR) AND A CASE STUDY 71 V CONCLUSIONS AND RECOMMENDATIONS 1 30 REFERENCES 1 35 APPENDIX A Glossary of Water Law, Administration and 141 Legal Terms B Statutory Authority 150 C Federal Environmental Laws and Colorado Water Law 152 D Timeline of Colorado Groundwater Well Regulation 167 E International and Interstate Documents Affecting 174 F Water Administration in California, New Mexico, and Wyoming 193 G MODFLOW Graphical Output 205 vi

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LIST OF FIGURES Figure 1 Colorado Historical Average Annual Stream Flows (Co. DWR) 1 4 2 Unit Water Released from an Aquifer Under a Unit Head in Decline (McKinney, 2014) 76 3 Relationship between Porosity, Specific Yield, and Specific Retention for a Range of Soils ( McKinney 2014) 77 4 (McKinney, 2014) 77 5 Darc Illustrating Value of Hydraulic Conductivity K, is a Constant for a Given Material (McKinney, 2014) 78 6 Hydraulic Conductivity Lecture Slide (McKinney, 2014) 78 7 Hydraulic Conductivity for a Variety of Soil Types (McKinney, 2014) 79 8 Illustration Showing the Constant Nature of Hydraulic Conductivity K (NRCS, 2014) 80 9 Two Section Views of Underground Dams (Ishida et al, 2011) 84 10 Section Views of ASR Configurations (Martin et al, 2005) 85 11 ASR Projects in Brazil and Kenya (Foster et al, 2004) 89 12 ASR Projects in Brazil and Kenya (Foster et al, 2004) 89 13 Section Views of ASR Examples (Foster et al, 2004) 91 14 Mississippi Valley Alluvial Aquifer (USGS) 92 15 Drawdown Curves from Three Wells in Arkansas in the Mississippi River Alluvium (USGS) 93 16 Ogden, Utah Schematic Illustrating the Drainage Basin, Adjacent to the Great Salt Lake (USGS) 93 17 Pilot Infiltration Basin (USGS) 94 vii

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18 Santa Clara Water District (Ingebritsen et al, 1999) 95 19 Santa Clara Water District (Ingebritsen et al, 1999) 95 20 Graph of Historic Land Subsidence (Ingebritsen et al, 1999) 96 21 Santa Clara Valley Water District Water Recharge Facilities (Ingebritsen et al, 1999) 97 22 Depths to Water in Santa Clara Valley since about 1915 (Ingebritsen et al, 1999) 98 23 South Platte River Alluvium (CWCB, 2006) 1 05 24 Brighton, Colorado Weather Data 107 25 River Calls Affecting Dist rict 2 Location of Case Study 113 2 6 The South Platte River between Northeast Denver and Brighton 1 18 (Picture from Google Earth) 2 7 Case Study Site located east of the South Platte River South of 1 19 Highway 7 (Picture from Google Earth) 2 8 Case St udy Site looking South Southeast (photo by author) 1 19 2 9 Case Study Site near the South Platte River (Photo taken 1/18/2015 at 11:30am, by author) 1 20 30 Aerial of the Case Study Site with Soil Contours (USDA) 1 20 3 1 Slide20.gpr MODFLOW results Injection Wells with Qin = 2 cubic feet per second (cfs) 205 3 2 Slide30.gpr Results Injection Wells with Qin = 5 cfs 205 3 3 Slide40.gpr Reverse Spillway with Qin = 7 cfs 206 3 4 Slide50.gpr Reverse Spillway with Qin = 5 cfs, stores 51 acre feet at 5 days 206 3 5 Slide60.gpr Reverse Spillway with 6 cells and Qin = 5 cfs and Dispersion Piping Qin = 5 cfs 207 viii

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3 6 Slide80.gpr Pump Out Scenario Dry Cell at 50 acre feet pump out point 207 3 7 Slide90.gpr Pump Out at 1 cfs 35 days to get dry cell 70 acre feet pumped 208 38 Slide115.gpr Optimum Piping Configuration Qin = 5 cfs 208 39 Slide161.gpr Six Pumps @ 2 cfs/ea pumping out cells 209 ix

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LIST OF TABLES Table 1 Listing of Alluvial Storage and Recovery Projects World Wide (Ishida et al, 2011) 83 2 Recharge Advantages and Disadvantages to Deep Aquifers Using Wells (Martin et al, 2005) 87 3 Recharge Enhancement Using Infiltrati on Basins Advantages and Disadvantages (Martin et al, 2005) 88 4 Summary of Various ASR Projects in the US (Brand, 2008) 99 5 (Brown, 2006) 1 00 6 ( Brown, 2006) 1 01 7 (Brown, 2006) 1 02 8 Available Storage Capacity South Platte River Basin Alluvial Aquifer Region (CWCB, 2006) 1 06 9 Benefit/cost Analysis for ASR Project at Brighton, Colorado 110 10 Surface Reservoir Construction Costs 111 11 Reusable Effluent at Brighton Monthly Excess Total For Water Year 2014 116 x

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1 C HAPTER I INTRODUCTION The population of the northern Front Range area of Colorado is projected to grow 1.9% per year for the next five years and by 2040, the statewide population is expected to expand from the current figure of 5 million to 8 million (a 60% increase) (DeGroen, 2012) According to the Colorado State Engineer, of the 100 million acre f eet of water created annually by precipitation within the state boundaries, 84 million acre feet is consumed by forests and native vegetation, 10 million acre feet is allocated to other states via interstate compacts, and only 6 million acre feet of water remains to satisfy the needs of people of Colorado. (Wolfe, 2014) Surface water and groundwater administration in Colorado, which operates under the specifications of the prior appropriation doctrine, state statutes, and common law generated by the Colorado judiciary, currently finds itself under additional unforeseen c onstraints. In 1956, a proposed water storage project in western Colorado, Echo Park Dam, was the first notable project denial based upon environmental concerns. This dam was proposed to be constructed within a designated national monument (Dinosaur Nati onal Monument). Although dinosaur tracks and relics would not be affected by the dam, a portion of the monument would have been flooded. (Limerick, 2012). decreased the probab ility of large dam building along the navigable waters of the South Platte River in Colorado. Those laws include: The Wilderness Act of 1964, The Wild and Scenic Rivers Act of 1968,

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2 The Clean Air Act of 1970, The National Environmental Policy Act of 1970, The Clean Water Act of 1972, The Endangered Species Act of 1973, and The Federal Land Policy and Management Act of 1976. ( I bid. p 176) The South Platte River basin in Colorado is home to the largest human population centers (Ft. Collins, Denver metro ar ea) in Colorado and the largest agricultural water usage. The Denver Water Board is the largest supplier of domestic water in the Denver metro area. The Water Board began its strategic plan of securing water rights in the late supplies. On November 23, 1990 EPA Administrator William Reilly, who was appointed by President George H.W. Bush, vetoed the Two Forks project under the authority granted by Section 404 (c) of t he Clean Water Act. ( I bid., p. 199) The need for water storage, however, has not diminished. The era of large dam construction on the South Platte River is probably over, therefore new means and thinking of storing large quantities of legally available w ater, is now a critical component of long term water use planning on local, regional, and State levels. This research effort will evaluate current legal doctrine; propose s an engineering design, conjunctive use alternatives, and policy reforms due to the impending shortages in the availability of water resources in the South Platte River basin of Colorado. The conclusions may also apply to other western areas of the U.S. that are predicted to experience similar hydrologic conditions and constraints

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3 There are present and future needs to store water, but they must be accomplished without building large Two Forks size (1,000,000 acre feet) above ground water storage vessels on navigable streams. One method maybe available to accomplish this task: (1) S ubsurface South Platte River (and its tributaries) alluvial groundwater storage. Revised legal and innovative engineering methodology of managing the 10 million acre feet of potential underground alluvial storage in the South Platte River basin are the key to future co existence with the overarching environmental statutes under the purview of the Federal Government and the ability for Colorado to be the steward of its own surface and groundwater resources. V arious segments of state governance are res ponsible for the overall stewardship Of the three branches of Colorado state government, including the legislative branch, the judicial branch (including the State Supreme Court and the seven regional water courts), and administrative branches (including the Division of Water Resources and the Colorado Water Conservation Board), who is best suited to provide the expertise, judgment, and management necessary ? Th e dissertation ex amines this question by disc ussing gaps in the knowledge, presenting the state of the art and alternative water storage methodology, and a design to assist Colorado in meeting its ever increasing water demands under the prior appropriation doctrine. For those western states that share similar water supply and allocation systems and issues of water demand versus supply, this dissertation and its findings can apply as well.

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4 This dissertation contains Appendixes A through G The topics sequentially include ; Glossary of Water Law Administration and Legal Terms ; State Engineers Statutory Authority; Federal Environmental Laws and Colorado Wat er Law; Timeline of Colorado Groundwater Well Regulation; International and Interstate Documents Water Administration in California, New Mexico, and Wyoming; and MODFLOW Graphical Output. Background of the Problem The Governor of Colorado John Hickenlooper, directed the Colorado Water Conservation Board to develop a statewide water plan by December 31, 201 5 This A critical compone nt of this analysis was the development and implementation of regional roundtable discussions to elicit citizen input. There have been over 800 such roundtable sessions since 2005. ( Bartels, 2014) As evidence of standing in this overall process, on Wedn esday February 12, 2014, three state legislators walked out of a joint House and Senate agriculture committee hearing, when two administrative agency leaders discussed their concerns over a proposed bill (Senate Bill 115) granting the legislature veto powe r over the State Water Plan. Ibid. Colorado Representative Jerry We have three branches of government, and plan effort to remo ve politics from the process, the opposite occurred. Therefore, this episode raises the question, which of the three branches of Colorado government is/are best suited to develop such a plan and which, if any, should have veto power ? This dissertation wi ll explore this dilemma by examining each of these branches of government, its history,

PAGE 16

5 authority, and current standing as to influence in Colorado water administration and policy. The water storage methodology developed by this research can aid policy ma kers in water master planning efforts. The structure of this dissertation includes analysis of the three branches of Colorado state government and governance as they relate to water resources allocation and administration. As identified in this section and the literature review, presented in Chapter 2, there are unresolved issues, conflicting and overlapping responsibilities within state government. These unresolved issues linger, while the water supply needs of Colorado citizens are predicted to increase. In addition, the Federal government s environmental laws may prove problematic when incorporating an increasing population and decreased water resources resulting from climate change. Statement of the Problem The U.S. Department of the Interior 2011 Climate Study predicts within the southwest United States, due to climate change, a reduction of snowfall/rainfall/runoff event intensity and an increase in average temperature resulting in spring runoff begin ning t wo weeks sooner This decrease in anticipate d runoff will compete directly In addition, the corresponding increase in water demand will compete with the net 6 million acre feet of usable streamflow annually that the Colorado State Engineer estimates is available to satisfy domestic, industrial, agricultural, municipal and other water dependent demand There is currently the potential, via the ballot initiative process, for the c itizens of Colorado to vote and adopt a Public Trust Doctrine relative to water policy and administration. This action, if adopted, would fundamentally change Colorado water

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6 doctrine. This dissertation examines the fundamentals of public trust doctrinal water The Colorado Water Conservation Board ( CWCB ) in 1973, was authorized by statute to establish, maintain, manage, and purchase water rights for maintaining in stream flows to the extent necessary to enhance aquatic species. (CWCB 2013) This dissertation offers a proactive methodology, by incorporating existing CWCB authority such that policy formulators of Colorado could expand and adopt, to preclude the nece ssity of a formal public trust doctrine being required via the ballot initiative process The new alluvial storage methodology could provide for storing surface water that would otherwise leave the state. This storage could assist CWCB in maintaining its in stream flows. The era of large above ground dam building projects is probably over in the South Platte River basin, because of the decision not to issue permits to construct Two Forks dam, located southwest of the Denver metro area. These permits we re not issued due to non compliance with the Clean Water Act. (Limerick 2012 ) An alternative method of storing surface water is needed. Finding additional legal storage vessels would assist endangered species mitigation and/or supply needs of a growi ng population. This dissertation will explore one alternative and its implementation. The CWCB estimates there are 10,000,000 acre feet of water storage capacity in the stream alluvium of the South Platte River and its tributaries. (CWCB 2007 ) Onde r and Yilmaz (2005 ) have modeled, using MODFLOW, several examples of underground water storage projects including sand dams and underground dams. They have found these water storage facilities to reduce evaporative losses, the stored water is available f or

PAGE 18

7 long periods of time, are less susceptible to pollution and health hazards, and the land above can be used for other purposes. Ibid. Ishida, et al (2011), have identified twenty two subsurface dams in Japan, six in Korea, six in China, four in India, two in Ethiopia, five hundred in Brazil, five hundred in Kenya, and two in the U.S.A. Ishida report s the technical Committee on Groundwater Dams in the International Commission on Large Dams (ICOLD) are preparing guidelines for the development and use of underground dams. The member countries of ICOLD include Brazil, China, Macedonia, India, Iran, Japan, Korea, Morocco, Nigeria, Slovakia, Thailand and the United States. In order t o store water in the alluvium of any Colorado tributary stream, there are legal constraints restricting such water storage, however, with the correct remedies, such storage is possible. Such a design remedy is presented in this dissertation. Purpose of the Study resources are the purview of the states three branches of government. However, there are examples of misuse or expansion of assumed authority. Leonhardt (1995) discovered in t he history of a particular opinion by the Colorado S tate Supreme Court the majority had written a preliminary opinion that stated Colorado was, in fact, a Public Trust Doctrine state. However, not for the interjection of Chief Justice Malarkey, the oppo sing opinion holder, Colorado would have be en declared a public trust state. Furthermore, f or twenty nine years, the State Engineer annually signed and administered hundreds of temporary changes in water rights without judicial review, that in December 2 001 the Colorado Supreme Court found was not a correct interpretation of the statute s In 2014, a

PAGE 19

8 senate bill was introduced that would give the legislature, veto power over a state water plan, when the governor had assigned that responsibility to the CW CB. Whether labeled judicial intervention or activism, legislative overreach, or administrative agency discretion of legislated duties, water policy in Colorado especially during times of climate change requires increased cooperation, teamwork, and mutual respect among the agencies. This dissertation intends to illuminate the following gaps in the knowledge. First, no methodology exists to mitigate endangered species in the South Platte River basin by using subsurface water storage during periods of climate change and predicted reduced flood inflows. W ith the Colorado Water Conservation Board estimating 10,000,000 acre feet of alluvial water storage is possible in the South Platte River basin, no methodology has been designed to store water in stream alluvium without the aid of electrical or gas powered pumping systems for the stream inflow component Research Questions Does Colorado have an obligation to adopt the Public Trust Doctrine, as California and Oregon have done? Are there differences i n the state constitutions of those two states and Colorado, which would infer adoption of the Public Trust Doctrine is Are there areas along the South Platte River basin where alluvial storage and due to the nature of the subsurface materials ? Also, what is the present day status of alluvial groundwater storage, both in the United States and worldwide and can any of these technologies be a pplied to the South Platte River basin in Colorado.

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9 Significance of the Study The predicted increase in population in Colorado by 3 million by 20 4 0 and a decrease in water supply resulting from climate change requires innovative and specific solutions to enable both to occur without significant impact to the human condition in Colorado. By offering public trust doctrine strategies, conjunctive use alternatives, a new design for alluvial groundwater storage, t hese elements will contribute to and enhance to be completed by the end of 201 5 Public Policy Civil Engineering Interface need to integrate public policy i nto civil engineering education and in 2008, ABET (2012) Criteria for Accrediting Engineering Programs A survey was forwarded to 224 accredited civil engineering programs throughout the United States, to which 57 departments, or 25% of all accredited programs, responded. The survey found most departments typically include basic concepts in management, business, public policy, a nd leadership into capstone courses. Unfortunately, the survey found overall, few civil engineering departments are executing or planning changes in response to the ABET call for more substantive inclusion of public policy principals into course curricula Ibid. Before the 2008 survey, an ABET criteria modification in 2000, proposed engineering design to include considerations of environmental, health, safety, ethical, social and political impact on engineering design. Barry Hyman (2003), a Professor of

PAGE 21

10 Mechanical Engineering and Public Affairs at the University of Washington, researched the public policy civil engineering curricula relationship as called for by ABET. Hyman (2003) states: ivity to the impacts of technology has fostered the concept that engineering should consider societal concerns as part of the design process. Many of these social concerns have been articulated as public policy decisions that have become engineering desig Characklis (2003) highlighted the relationship between water resources engineering and public policy and found the strong influence of public policy relative to research differentiates it from other engineering disciplines, because water resource solutions often satisfy a regulatory objective. This dissertation presents the intersection of engineering and p ublic policy research, with the intent of finding a technical solution to a societal and environmental problem.

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11 CHAPTER II ELEMENTS OF WATER RESOURCES ADMINISTRATI O N IN COLORADO This chapter of the dissertation examines several facets of wat er resources administration, policy formulation, and judicial involvement. By performing this detailed research, gaps in these subject areas are discovered, presented and discussed. The three general areas of research include water administration via the statutorily created Colorado Division of Water Resources, the Colorado judicial component, including the water courts and Colorado Supreme Court, and finally, the statutes and water policy generated by the Colorado legislature. The sustainability of wate r supply and the systemic conflict between the three branches of Colorado state government, present continued uncertainty in effective water policy and management. The first subsection of this chapter, presents a discussion of the role, structure, and res ponsibilities of the Office of the State Engineer. Structure and Function of the Colorado Division of Water Resources The Colorado Division of Water Resources ( CDWR ) is charged with over 35 years, water commissioners under the supervision of Division Engineers and the State Engineer have administered decrees of the court, in accordance with many diverse legal directives contained in Title 37 of the Colorado Revised Statutes and others T he CDWR annually administers over 170,000 water rights for over 47,000 structures (Wolfe, 2013). In addition, the SEO through the seven including its tributaries), annually completes 450,000 observations of structures and records 30,000 water diversions and storage releases. As required by statute, the Division

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12 annually and the SEO also evaluates and generates 200 300 sub stitute water supply plans (aka replacement plans) per year (essentially temporary augmentation, changes in use plans). The State Engineer is also responsible for the administration of 2,900,000 acre feet of annual pumping from over 270,000 production wat er wells. Other legislated responsibilities include: Public Safety water well construction inspection; Interstate Compacts Satellite Monitoring, Ground Water Well Permitting, Litigation Services, Decision Support Systems, and Public Information Service s. These responsibilities are carried out by approximately 2 5 0 professional engineers, geologists, information technology professionals, technicians and support staff The Division Engineers are located in Greeley (Water Division 1), Pueblo (Water Divisi on 2), Alamosa (Water Division 3), Montrose (Water Division 4), Glenwood Springs (Water Division 5), Steamboat Springs (Water Division 6), or Durango (Water Division 7). The mission of C DWR is to distribute water in accordance with statutes, decrees, and interstate compacts with the constraint that approximately water must exit the state to meet interstate compact obligations In addition, the public safety is al so a legislated mandate assigned to the DWR and is ensured by periodic dam and well construction inspections as well as maintaining and providing accurate and Although the State Engineer administers the ies constitutional assignment Colorado Constitution Article 16, declares water to be property of the citizens of Colorado (subject to appropriation and adjudication). The complexity of this arrangement is challenging even

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13 more, with changes in climate. This dissertation will not explore the causes of climate change; however, the ramifications on Colora do state laws, and those of the US governmental agencies, including the US Fish & Wildlife Service, and the US Environmental Protection Agency, will be ex amined For example, within Colorado there are currently 16 animal species listed by the US Fish & Wildlife Service, as either endangered or threatened. In addition, there are currently 16 plant listings as either endangered or threatened ( EPA, April 16, 2013). Colorado water managers, legislators, the e xecutive and judicial branches should be H owever, solutions may not be as obvious. An engineering proposal will be offered to place Colorado in a better defensive position to react proactively to the over arching authority of the Federal government. example, APPENDIX B lists the thirty one (31) statutes govern ing the daily requirements of water administration in Colorado (Colo rado Revised Statutes, 201 4 ). The underlying guidance that focuses oversight by the State Engineer, is to maximiz e the beneficial use and to administer decrees of the courts The specific authority granted to the State Engineer and the various technical/scientific/engineering expertise needed by the State Engineer and staff waters, both surface and ground water are contained in the 31 statutes mentioned previously. The Colorado Division of Water Resources is the central state agency, on

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14 behalf of the directives (statutes) of the Colorado legislative branch of government, to be assigned these rigorous responsibilitie s of administering the States surface and groundwater. The Colorado Ground Water Commission administers designated basin and the Board of Examiners administers water well contractors and pump installers. To illustrate the varied hydrologic characteristics of Colorado, Figure 1 depicts the average annual flows on the streams that leave the state. Figure 1 Colorado Historical Average Annual Stream Flows Note the majority of flow leaves the state in the Colorado River basin, whereas the majority of the state population is on the east slope in both the South Platte River and the Arkansas River basins. APPENDIX E is a compilation of the nine interstate compacts in which Colorado is a party and two othe r interstate water agreements and summary comments that apply to each

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15 The following sections of this dissertation offer a summary of the prior appropriation doctrine and riparian doctrines. The riparian doctrine typically applies to states east of the Mississippi River, however, a few western states have adopted portions of the doctrine. Colorado Water Administration under the Prior Appropriation Doctrine basic understanding of the prior appropriation doctrine is fundamental. The Basic Tenants section, following this section contains a detailed listing of characteristics specific to the prior appropriation doctrine. This doctrine applies to nine western states including (Getches, 2009) : 1. Alaska 2. Arizona 3. Colorado 4. Idaho 5. Montana 6. Nevada 7. New Mexico 8. Utah, and 9. Wyoming, In the above states, the annual rainfall is insufficient to supply for agricultural needs. It should be noted that in Colorado, the judicial branch of government, through the State Supreme Court where common law is generated. In the other eight prior appropriation states, the State

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16 Engineer issues all water permits/decrees. Colorado and Montana are the only state s in the United States where water adjudications are the spe cific legal responsibility of the State judiciary. Ibid. This fact appears to conflict directly with the intent of administrative law, which illustrates the relationships between the three branches of ), the judiciary, and executive. However, this apparent conflict is not the purpose of this present research. In addition south, Limon on the east, and Golden on the west, are issued based on land ownership. There are ten ot her western states that use a combination prior appropriation /riparian doctrine mix and are referred to as the hybrid system Those states include: 1. California 2. Kansas 3. Mississippi 4. Nebraska 5. North Dakota 6. Oklahoma 7. Oregon 8. South Dakota 9. Texas, and 10. Washington

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17 Ba sic Tenants of the Prior Appropriation and Riparian Doctrines To aid in the understanding prior appropriation doctrine basics, the following summary points on the doctrine key points, was taken from (Getches, 2009). The prior appropriation doctrine was developed to service the practical demands of nineteenth water users in the western United States. (Getches, p. 77) Most appropriation jurisdictions consider water to be a public resource owned by no one. (Ibid.) The typical elements of a valid appropriati on are: intent to apply water to a beneficial use; an actual diversion of water from a natural source; application of the water to a beneficial use within a reasonable time. (Getches, p. 78) If disuse is intentional, it may be construed as abandonment. (Ge tches, p. 79) Most statutory schemes require water users to have permits. In Colorado, a water court issued decree is necessary. (Getches, p. 80) Colorado is the only western prior appropriation state when dealing with surface water, where a permit is n ot issued by the State Engineer. allow water to be used inconsistently with public purposes. (Ibid.) Most states declare that water belongs to the public or the state. (Getches, p. 86) In most states, the holder of a righ t can, without loss or priority, transfer it to be used for a different purpose on another parcel of land. Also, the right can be sold

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18 to another party who can change the use if other appropriators will not be injured. (Getches, p. 87) States have a speci al interest in assuring that water, as a public resource, is devoted to purposes consistent with the public good. Therefore, there is the requirement the water be applied to a beneficial use. (Getches, p. 92) The doctrine of relation back allows and appro priator to perfect a water right with a priority date as of the time the intent to appropriate was first formed. (Getches, p. 93) Colorado law provides for conditional decrees that hold rights to a particular quantity of water for a specific future use. ( Getches, p. 95) Plans, but no firm contracts, to sell either surface or groundwater to growing cities are not sufficient to show intent to appropriate, but constitute only speculation. (Ibid.) Several states no longer require an actual, physical diversion from the stream. Several states have embraced a trend allowing instream appropriations of water. (Getches, p. 102) Most states now have accepted recreation as a beneficial use. (Getches, p. 106) Priority is the essential feature of the doctrine of prior a ppropriation. A senior cannot change an established use to the detriment of a junior. (Getches, p. 109) A senior cannot change the place of diversion if it adversely affects a junior. (Ibid.) States are beginning to be more rigorous in imposing regulation s that prevent polluting, wasteful, or inefficient uses. (Getches, p. 110)

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19 A senior cannot enforce a water right if a junior can prove that the senior would not put the water to a beneficial use. (Ibid.) The water of natural lakes and ponds ordinarily is s ubject to appropriation by state law. (Getches, p. 116) Imported or foreign water, e.g. from transbasin diversions, is not part of the stream and this not subject to appropriation. (Getches, p. 118) An importer can stop importing water at any time. (Getche s, p. 119) Instream flows can receive some protection under the federal Wild and Scenic Rivers Act. (Getches, p. 123) In Colorado, a Water Quality Control Commission regulates water quality and is prohibited by statute from interfering with the exercise of water rights. (Getches, p. 126) Adjudications of all existing rights throughout large watersheds are now underway in Arizona, California, Idaho, Montana, New Mexico, and Washington. (Getches, p. 128) Appropriative rights extend only to beneficial use, and therefore there is no right to use water wastefully. (Getches, p. 129) li n e its ditches. (Getches, p. 134) Colorado was the first state to provide special court proceedings for water rights controversies, and retained a judicial system and charged it with administrative functions. (Getches, p. 164) Riparian Doctrine

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20 The riparian doctrine applies to states that typically have sufficient rainfall for most agricultural needs. A full discussion on riparian water rights is not practicable in this setting; therefore, a bullet approach will be used to highlight the more critical components of this water rights allocation regime. This information is taken from the Getches treatise and the referenced page number will append as appropriate. Twenty nine states have water rights allocations based on the riparian doctrine. (Getches, p. 16) Elements of riparian allocation can be traced to precedents from both France and England, but it i s essentially an American doctrine. (Getches, p. 17) After the Revolutionary War, each state started to develop its own case law related to water allocation. (Getches, p. 19) With the industrial growth of the nineteenth century America, large mills require d water reservoirs for storage, and irrigation and industry diverted away from the streams. The idea of preserving the natural flow of the stream was rendered obsolete by the need to alter the stream to maximize water use. (Getches, p. 20) Today all ripar ian states have adopted some variant of the reasonable use doctrine, and nearly all have statutory permit schemes, which is divergent from the original riparian doctrine. (Getches, p. 21) To have riparian rights, a landowner must own property adjacent to a waterbody In the eastern United States, the courts generally require that a stream flow all year to constitute a water course. (Getches, p. 25)

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21 No such riparian rights accrue to a landowner of property adjacent to a waterbody if the source is diffused surface waters. These waters usually come from the runoff of rains or melting snow, and generally flow intermittently without a defined channel. (Ibid.) A lake is also a watercourse subject to rip arian rights. (Ibid.) The rights of owners of land riparian to an artificial stream or lake are not o The right to the flow of the stream: o The right to make a reasonable use of the waterbody, provided reasonable uses of other riparians are not injured; o The right of access to the waterbody; o The right to fish; o The right to wharf out; o The right to prevent erosion of the banks; o The right to purity of the water; o The right to claim title to the beds of non navigable lakes and streams. (Getches, p. 34) Generation of electrical power is an important riparian use. (Getches, p. 41) The holder of an earlier permit has no absolute preference over the holder of a later permit. (Getches, p. 49) riparian to divert water if no riparian is harmed. (Getches, p. 56)

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22 About half the permit states grant perpetual permits and for the others, a permit is for a fixed term ranging from three to fifty years. (Getches, p. 61) Seniority gives no priority in times of shortage. (Ibid.) Riparian rights are property rights that may be held only by owners of riparian land. (Getches, p. 62) Avulsion occurs when a stream suddenly changes its channel. Avulsion can eff ectively transform riparian land into non riparian, thereby depriving the unfortunate owner of riparian rights. (Getches, p. 71) Most courts have held that a change in stream course constitutes avulsion if it is considerable, violent, and abrupt. (Ibid.) C olorado Water Rights Administration Act of 1969 In 1879, The Colorado General Assembly created ten water districts for administering water rights and that authority was assigned to the state Division of Water Resources. (Stenzel, 2013 ) By this action, C olorado was the first state in the United States to apply the appropriation doctrine and have a state agency administers the program. Ibid. Several amendments to state law were enacted dealing with water rights since 1879, however, the most significant co ntribution to state water policy occurred when the simultaneous administration of both surface water and groundwater was acknowledged by the state legislature. Less than 100 years later, the Colorado General Assembly enacted the Colorado Water rights Ad ministration Act of 1969 for the purpose of integrating administration of both surface water and groundwater (Hobbs, 1999 ). This law provides direction to water divisions, division engineers, water judges, referees, and water clerks. In addition,

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23 the de velopment of a tabulation of water rights was established along with the requirement for proper notice for both application and determination of water rights. This act also solidified both the role of the Colorado Division of Water Resources (aka State Eng I bid) As contained in Article XVI, sections 5 and 6 of the Colorado Constitution, by the prior appropriation doctrine. By the policy statement of the General Assembly, both surface water and groundwater is now a public resource to be decreed and administered in priority. Ibid. According to Colorado Supreme Court Justice Gregory Hobbs, According to Justice Hobbs, the following three activities precipitated the 1969 Act. ( Ibid p 13). 1. The State Engineer, on a case by cas e basis, began to regulate tributary groundwater wells. 2. The Colorado General Assembly directed the Department of Natural Resources to investigate groundwater surface relationships and recommend legislation, and 3. In a contested groundwater case in Water Divi sion 2 (Arkansas River and its tributaries), the Colorado Supreme Court urged the State Engineer to adopt regulations in a comprehensive manner. cit in these constitutional provisions that, along with vested rights there shall be maximum utilization and how constitutionally that doctrine can be

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24 integrated into the law of Ibid The next year, the Colorado legislature adopted the 1 969 Act. The 1969 Act created seven water divisions: Water Division 1(South Platte and other northeastern plains rivers including the Repubilcan River basin and Laramie river basin ) headquarter in Greeley, Water Division 2 located in Pueblo and responsib le for the Arkansas River and other southeastern plains tributary river s Water Division 3 located in Alamosa and responsible for the Rio Grande and its tributaries The Water Division 4 offices is located in Montrose and is responsible for the Gunnison R iver and its tributaries, while the Water Division 5 office is located in Glenwood Springs and administers the Colorado River and its tributaries to the state line. The Division 6 office administers the Y ampa, White, and their tributaries and the North Pl atte R ivers and is located in Steamboat Springs. Finally, the Division 7 office, while located in Durango, is responsible for the San Juan, Dolores and other Southwestern rivers. Ibid p. 14 In summary, the 1969 Act created, directed, or enabled the foll owing: 1. S even water divisions in Colorado. 2. Each water court (in each water division) publishes a monthly resume of applications received each month This resume serves as notice to interested parties. 3. The State Engineer generates a tabulation of decreed water rights with their priorities and other pertinent information The priority date is a function of the year the application was filed and the date of initial appropriation. 4. The State Engineer periodically compiles an abandonment list.

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25 5. The Division Engi neers file consultation reports and recommendations on applications submitted to the referees and water judges. 6. Establishes the water courts as the only venue for issuing water decrees and divides authority granted to the water courts versus the State En gineer. 7. Commands the State Engineer, Division Engineers, and Water Commissioners must administer the waters of natural streams in accordance with judicial decrees. 8. Declares the administration of non tributary groundwater is not subject to the doctrine of p rior appropriation. 9. Changes of water rights are a function of historic consumptive use and terms and conditions are imposed so as not to injure other decreed water rights. 10. By amendment, the Colorado Water Conservation Board, is granted authority as the o nly state agency able to appropriate instream flows and minimum lake levels 11. Colorado must deliver water to satisfy the nine interstate compacts and t wo equitable apportionment decre es of the United States Supreme Court. Ibid. According to Colorado Supreme Court Justice Hobbs, the major accomplishments of the 1969 Act are: 1. I ntegration of surface water and tributary groundwater into a unitary adjudication and administration system; 2. Specialized water court jurisdiction and engineer administration on a watershed basis; 3. Resume notice procedure for obtaining jurisdiction for adjudication of rights;

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26 4. Case by case decrees and appeals in the context of an ongoing and comprehensive adjudicati on; 5. Authorization of augmentation plans to enable otherwise out of priority water use through the provision of replacement water; 6. Effective rulemaking and enforcement authority in the state and division engineer for the protection of state, federal, and in terstate rights; and 7. Explicit procedures for filing and pursuing applications and objections to applications for water rights, conditional water rights, changes of water rights, I bid p 17 However, not all are full advocates of t he 1969 A ct. Colorado Water Attorney Melinda Kassen, while representing environmental interests (Trout Unlimited), offers an alternative evaluation (Kassen, 1999) While recognizing the integration of the administration of both surface water and ground w not incorporate most of the management techniques necessary to make maximum e, strong management, waste summarizes the water court based system has the following disadvantages (Ibid, p. 3) : 1. Court costs are too high and the need for legal couns el limits the probability that certain types of transactions will occur. 2. The high court costs favor those participants with sufficient resources. 3. Public access to the court process limits participation.

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27 4. The non water right holders have limited arguments in opposing water rights applications. 5. The water courts, due to case by case determinations, fail as an effective forum for water resource planning. Kassens contends, if Colorado were to follow a permit based system (administrative agency issue water permits versus water court decrees), the agency could also have responsibilities for resource management and planning. This assignment could lead to efficiencie s in water allocation and certainty of consistent procedures. Summary of Chapter II Today, t Colorado Division of Water Resources, and the seven Division Offices located in each of the major stream systems. The water commissioners are the day to day administrators that use the tabulation of water rights for their assigned areas, to assign who is in priority on any given day. As more water court generated decrees become more complicated and deal with smaller quantities of water, the job of all the water administrators is becomin g more complicated. The Colorado legislature, over time, has generated statutes (listed in APPENDIX B ) that give specific operational structure and control to the State and Division Engineers. gineer, water administration in view of climate change and possible adoption of a Public Trust Doctrine in Colorado, would be problematic, if not impractical. Clear boundaries of assigned responsibilities st be respected and maintain ed

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28 Blurring of the lines between the three branches will benefit no one, especially the ultimate water user.

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29 CHAPTER III JUDICIAL RESPONSIBILIT I ES IN COLORADO WATER RESOURCES Colorado Constitutional Convention Dealing with Water The Colorado Constitutional Convention began on December 20, 1875 and required 87 days of discourse to produce the state constitution. (Stenzel p 197) A key role. A nine member committee on irrigation was formed and was chaired by S.J. Plumb of Greeley and John S. Wheeler of Weld County. Up until that time, common law or riparian law was the law of the land, but Mr. Plumb was determined to change the system to prohibit Ft. Collins from commanding the flow of the river during the next drought. Ibid. On Wednesday, January 5, 1876, committee member Byron L. Carr, representing Boulder, offered the following resolution: Resolved, That the following sections s hall be part of the Constitution of the State: Sec. The primary right of ownership in the waters of all the streams in this State is and shall be at all times in the State, and the said streams and the waters therein are an shall be subject to the control of the Legislature. Sec. It shall be the duty of the Legislature from time to time to pass such laws as may be necessary to secure a just and equitable distribution of the water in the streams of the State, for mining, irrigating and manufacturing purposes, in such a manner as to best foster and encourage these great industries of the State; promote the greatest good to the greatest number of citizens of the State; and at the same time to provide for the security and protection of all person in their individual rights.

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30 Sec. The Legislature ma y pass general laws authorizing the use of water for mining, agricultural and manufacturing purposes by corporations, associations or individuals, which laws may be altered or repealed at any time. Byron L. Carr was no relation to Ralph L. Carr, Colorad o Governor from 1939 1943, and for whom the Colorado Judicial Center in Denver is named. (AncestryLibrary.com Colorado State Census, 1885) On Friday, February 11, 1876, S.J. Plumb proposed the following modifications to the Irrigation and Agriculture sections dealing with water (p 296 297) Section 1. The water of every natural stream within the State of Colorado is hereby declared to be the property of the People of said State and the same is dedicated to their use forever. Sec. 2. Priority of ap propriation shall give priority of right except from the first day of June until the first day September in each and every years, when lands used for agricultural purposes shall have the preference. Sec. 3. All person and corporations shall have the righ t of way across public, private and corporate lands for the construction of ditches, canals and flumes for the purpose of conveying water for the irrigation of agricultural lands and for mining and manufacturing purposes and for drainage. Sec. 4. All dit ches, canals and flumes constructed by any person or corporation for conveying water from its natural channel shall be subject to all acquired rights to the waters upon said stream, above and below the head of such ditch or flume.

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31 Sec. 5. The Board of Co unty Commissioners in their respective counties shall regulate the price to be charge for the use of water, whether furnished by individuals or by corporation, so as to secure justice between the contracting parties. Sec. 6. All ditches, canals and flume s constructed by individuals or corporations for the exclusive purpose of irrigating lands owned by said individuals or corporations shall not be separately taxed. On Friday, February 18, 1876, Irrigation committee member, Mr. W.B. Felton, representing Sa guache County (western Colorado including the town of Gunnison), offered the following substitution for Section 1: Section 1. The unappropriated water of the natural streams within the State of Colorado is hereby declared to be dedicated to the use of the public, subject to the provisions of this Constitution and the laws of the General Assembly. ( p. 344) The Irrigation and Agricultural committee members met on February 23, 187 6 and Committee Chairman S.J. Plumb proposed the following modification to Se ction 1: Section 1. The water of every natural stream, not heretofore appropriated within the State of Colorado, is hereby declared to be the property of the public, and the same is dedicated to their use as herein provided by this Constitution. (p 392) At 2pm the same day, the Convention Irrigation Committee members met and changed Sections 1, 2 and 3 as follows (393): Section 1. The water of every natural stream, not heretofore appropriated within the State of Colorado, is hereby declared to be the pr operty of the public and the same is dedicated to the use of the people of the State, subject to appropriation as hereinafter provided.

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32 Sec. 2 Except for domestic purposes, priority of appropriation shall give priority right, except from the last day of May until the first day September, in each and every year, when lands used for agricultural and horticultural purposes shall have the preference over manufacturing establishments. Sec. 3 All persons and corporations shall have the right of way across public, private and corporate lands, for the construction of ditches, canals and flumes for the purpose of conveying water for domestic purposes and for the irrigation of agricultural lands and for mining and manufacturing purposes and for drainage, upon p ayment of just compensation.( p. 394) At 2pm on March 1, 1876, irrigation committee member Mr. Pease moved that section 2 be stricken and the following be substituted (p 503): Section 2. The right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied. Priority of appropriation shall give the better right as between those using the water for the same purpose, but when the waters of any natural stream are not sufficient for the service of all those desiring to u se the same, those using the water for agricultural purposes shall have preference over those using the same for the purpose of manufacturers. The last day of deliberations concerning water issues was held on Wednesday, March 8, 1876 beginning at 9am. (p 611) On that day, it was agreed that: Sections 1 and 2 remained unchanged; section 3 as modified by the committee was approved by the Convention; sections 4 and 5 remained unchanged, and the changes to sections 6 and 7 as recommended by the Committee was approved by the Convention, and section 8

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33 remained unchanged and section 11 as modified by the committee was approved by the Convention. (p 616). The irrigation section of the adopted Colorado Constitution is located in Article XVI Mining and Irrigation and is as follows (p 700): Section 5. The water of every natural stream, not heretofore appropriated, within the State of Colorado, is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the State, su bject to appropriation as hereinafter provided. Section 6. The right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied. Priority of appropriation shall give the better right as between those using the wate r for the same purpose; but when the waters of any natural stream are not sufficient for the service of all domestic purposes shall have the preference over those claiming for any other purpose, and those using the water for agricultural purposes shall hav e preference over those using the same for manufacturing purposes. Section 7. All persons and corporations shall have the right of way across public, private and corporate lands for the construction of ditches, canals and flumes for the purpose of conveyi ng water for domestic purposes, for the irrigation of agricultural lands, and for mining and manufacturing purposes, and for drainage, upon payment of just compensation. Section 8. The General Assembly shall provide by law that the Board of County Commissioners in their respective counties, shall have power, when application

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34 is made to them by either party interested, to establish reasonable maximum rates to be charged for the use of water, whether furnished by individuals or corporations. The Colorado Supreme Court, in 1888 and 1891, rendered opinions that would The first case answered the que stion as to the right to change a water right (both location and use) and the second case established the concept of a water right classified as property. The next section in this dissertation offers a timeline of law relating to water administration. The process has been deliberate, comprehensive, forthright, and concise. Should the Public Trust Doctrine be adopted in Colorado, much of what has been adopt ed and administered, maybe in jeopardy due to uncertainty of application of existing statutes, common law (judge made law), and which would govern under a state constitutional amendment via the ballot initiative process. Timeline of Colorado Surface and Groundwater Laws The following timeline of Colorado surface and groundwater law (reduced in part by this author), from a presentation given by (Hobbs, 2007) illustrates the complex assignment of responsibilities assigned to the State Engineer by the C olorado Legislature and the assignment of some duties to the Colorado Judiciary. Colorado and recently, Montana, are the only state s where adjudications for water rights are the responsibility of the courts. 1876 Article XVI, Sections 5 and 6 of the Colorado Constitution declare that the un dedicated to the beneficial use of the people of the state by priority of appropriation.

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35 1903 Colorado General Assembly provides that any water right d erived from 297 98. 1914 ly, including percolating ground water, that is tributary to a surface stream, German Ditch & Reservoir Co ., 56 Colo. 252, 270 71 (1914). 1951 Colorado Supreme Court holds that Colorado law includes a presumption that all groundwater is tributary to and subjec t to appropriation and administration as part of the waters of a surface stream, unless a person proves by clear and satisfactory evidence that the ground water is not tributary, Safranek v. Town of Limon 123 Colo. 330, 333 (1951). 1965 Colorado General Assembly, by a separate act from the Ground Water Management Act, requires State Engineer to administer tributary groundwater in accordance with the doctrine of prior appropriation that is applicable to the distribution of surface water, and adopt rules a nd issue orders necessary to enforce this responsibility, 1965 Colo. Sess. Laws, Ch. 318, 1244 45. 1968 Colorado Supreme Court vested rights there shall be maximum utilization administration of water in the second century of prior appropriation law involves how

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36 maximum utilization of surface water and tributary groundwater can be integrated into the law of vested rights, Fellhauer v. People 447 P.2d 989, 995 (Colo. 1968). 1969 Colorado General Assembly adopts the Water Right Determination and Administration Act of 1969 which, among other provisions, states that (1) tributary groundwater and surface water shall be administered according to the doctrine of prior appropriation, in order to maximize beneficial use, (2) vested surface water and tributary groundwater rights shall be protected in order of their decreed priorities, and (3) augmentation plans may b e decreed to allow out of priority diversions that are not subject to state engineer curtailment, if sufficient replacement water is provided to alleviate material injury to adjudicated water rights, 1969 Colo. Sess. Laws, Ch. 373, 1200 1224. 1977 Colorado General Assembly repeals legislation it had enacted in 1974, 1974 Colo. Sess. Laws, Ch. 111, 440 42. that had allowed the State Engineer to approve temporary augmentation plans while the water court was adjudicating applications for augmentation plans, 1977 Colo. Sess. Laws, Ch. 483, 1702 04. 2002 Colorado General Assembly (1) authorizes State Engineer to ap prove substitute supply plans for out of priority tributary groundwater diversions under limited circumstances while augmentation plan applications are pending in the water court, and (2) approves the Arkansas river basin amended rules governing the divers ion and use of tributary groundwater in that basin, 2002 Colo. Sess. Laws, Ch. 151, 459 64. 2003 Colorado Supreme Court holds that proposed State Engineer 2002 South Platte Basin rules allowing out of priority diversions under replacement plans, in the

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37 ab sence of an augmentation plan application pending in water court, were contrary to statute and in excess of his authority, Simpson v. Bijou Irrigation Co ., 69 P.3d 50, 67 (Colo. 2003). 2004 Colorado General Assembly allows South Platte tributary groundwat er wells to operate out of priority under State Engineer approved substitute supply plans, with provisos that (1) augmentation plan applications must be filed in Division No. 1 Water Court by December 31, 2005, and (2) wells not included in an adjudicated augmentation plan or State Engineer approved substitute supply plan Laws, Ch. 316, 1205. The following section of this dissertation presents early Colorado Supreme Court de resources. Colorado Water Rights Foundational Supreme Court Decisions The four basic tenants of Colorado water administration according to Wolfe ( 2014) are : 1. The water is used for a judicially recognized beneficial use. 2. The use of the water must not result in injury to other vested water right holders. 3. The water must be efficiently used and not result in waste, and 4. The water must be physically diverted from the water sourc a recreational in channel diversion is permissible) Two cases decided by the Colorado Supreme Court in 1888 and 1891 further defined the operational constraints of water law and its administration. The first case in

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38 1888 was Fuller et al., v. Swan River Placer Mining Company (Supreme Court of Colorado 12 Colo. 12; 19P. 836; 1888 Colo.). This case was decided in the October term of the court. This case granted the right to change the place of diversion and place of use. The second case, deci ded in the January term of 1891, Strickler v. City of Colorado Springs Supreme Court of Colorado, 16 Colo. 61; 26P. 313; 1891 Colo., was the seminal decision declaring a water right is a property right with all protections as provided by the United States Constitution. The following detailed analyses of the cases are respectively referenced to each case and are presented to illustrate the foundational building blocks of Colorado water law (use of water is a property right, and the right can be changed as t o use and location). Fuller et al., v. Swan River Placer Mining Company The right to change the place of diversion and use was further solidified by Fuller This case concerns the operation of the Swan River Placer Mining Company, then located east of present day Breckenridge, Colorado, and the changing of decreed points of use. The Colorado Supreme Court, in their decision, specifically cited Sieber v. Frink right of prior ity, where no change is made in the quantity of water diverted, and no one is California Supreme Court opinions, prior to rendering their decision. The five California cases cited are (1) Maeris V. Bicknell 7 Cal. 262 264, (2) Kidd v. Laird 15 Cal. 162 180, (3) Mining Co. V. Morgan 19 Cal. 609 616, and (4) Davis v. Gale 32 Cal. 27., and finally, Junkans v. Bergin 67 Cal. 267 270.

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39 In Maeris ho makes a prior appropriation of water can change the place of its use without losing that priority as against those whose rights have other rule would destroy the uti In Kidd the California Supreme Court decided the use of water of a stream is others is the controlling consideration, and that, in t he absence of injurious consequences In the Mining point of diversion was absolute and unqualified, except as li mited by the condition that In the fifth California opinion, Junkans, the decision contains the following statement concerning the right to change the historical point of diversion, one entitled to divert a quantity of water from a stream may take the same at any point of the stream, and may change the point of diversion at pleasure, if the rights of others be These referenced five California decisions assisted the Colorado Supreme Court decision in Fuller Ibid. The next case presented, is Strickler v. City of Colorado Springs which fundamentally characterized the nature of water use in Colorado (a property right that can be pu rchased and then the point of diversion moved). Strickler v. City of Colorado Springs The January 1891 Strickler case illustrates a complaint between an existing water rights owner and a city that needed additional water supply to satisfy growth of the ci ty.

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40 Strickler argued that a water right is tied to the land and should not be moved upon sale of the property. Colorado Springs purchased some historically agricultural water rights on Fountain Creek and requested to transfer the point of diversion above Manitou Springs on Ruxton Creek to take advantage of an existing ditch, reservoir and pipeline to Colorado Springs that the city constructed in 1878. The city also had the most senior water right on Ruxton Creek. The three points the Colorado Supreme Co urt had to decide were: 1. Are the water rights of a junior appropriator from a tributary stream subject to the water rights of a senior appropriator downstream? 2. municipal use s with the same priority date? 3. If the Cities uses are domestic, has it the right to take waters previously appropriated for agricultural purposes? must be given to the firs t of the above questions seems obvious. A negative answer water right cannot be tran sferred by sale separate from the land, had merit. The Court acknowledged the findings in Fuller upon diversion for mining purposes, no reason is perceived why the rule in reference to appropriations for a gricultural uses should not be the same, the requirement in all cases

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41 think that the rul e announced in Kidd v. Laird injurious consequences to others, any change which the party chooses to make is legal exercised. This Colorado Supreme Court decision in Strickler also addressed the issue of water rights and its status a s property. Again, the Colorado court referenced previous decisions by the California courts. For instance, Colorado referenced Kidd v. Laird 15 water, so long as it continues to flow in its natural course, is not and cannot be made the Kidd use which will be regarded and protected as property, but it has been distinctly declared i Colorado court in Strickler under such circumstances that he could not sell the water right to be used u pon other land would be to deprive him of all benefits from such right. We grant that the water itself is The Colorado Supreme Court concludes its Strickler In our opinion this right may be transferred by sale so long as the rights of others, as in this case, are not injuriously affected thereby." The Court also references the property protections including the Fourteenth Amendment to the United States Consti

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42 T hese two foundational Colorado Supreme Court cases established boundary conditions for judicial decisions since that time However, as pre sented in the following section judicial review of administrative agency, such as the Colorado Division of Water Resources actions can complicate matters. Judicial Review of Administrative Agency Decision Processes When considering the above scenario one must remember the judiciary is appointed; however, judges can be un retained by voters. Judges, even though political appointees, can often surprise because once confirmed they are not subject to the capriciousness of the politicians. Judges serve f decide not to retain, which is an infrequent occurrence). In the alternative, agency appointees are hired and fired politically on a frequent basis and do not often serve long term based on merit but are exp endable by the executive, often at the clamor of the legislature. Long term thought processes and planning are difficult to accomplish by agencies unless all three branches come together and the judiciary continually is called upon to uphold the original agency intent. This section describes the concept of separation of powers, federalism, the role of the judiciary, and concludes with a Colorado example of judicial agency interaction. Separation of Powers The National Conference of State Legislatures (NCSL), Louis de Secondat, an 18 th century French social and political philosopher. His publication, Spirit of the Laws is considered one of the great works on political theory and jurisprudence. This document

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43 authority of the state is divided into legislative, executive and judicial powers and he fur ther asserts, in order to effectively promote liberty, these three powers must be separate and act independently (Ibid). The intent of the separation of powers is to prevent the concentration of power and provide for checks and balances. This is theoreti cally done by dividing government responsibilities into distinct branches thus preventing one branch from exercising the core functions of another. The traditional characterizations of the powers of US government are: The legislative branch is responsible for enacting the laws of the state and appropriating the money necessary to operate the government. The executive branch is responsible for implementing and administering the public policy enacted and funded by the legislative branch. The judicial branch is responsible for interpreting the constitution and laws and The NCSL notes that while separation of powers is paramount to the workings of American government, no democratic syst em exists with an absolute separation of powers and at the same time, an absolute lack of separation of powers. Also stated in the NCSL document, governmental powers and responsibilities intentionally overlap because they are too complex and interrelated to be clearly compartmentalized (Ibid). What does this infer? There is an inherent measure of competition and conflict among the branches of government. History illustrates there is an ebb and flow of preeminence among the governmental branches and such experience suggest that where power resides is part of an evolutionary process.

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44 Federalism From the History Learning Site n divides power between a central government and regional or sub divisional governments. Both types of government are supreme within their proper sphere of authority and both have to consent to any changes to the constitution (Ibid). Federalism can be considered a compromise between the concentration of power and a loose confederation of independent states for governing a variety of people in a large expanse of territory and has the virtue of retaining local pride, traditions and power, while allowing a central government that can handle common problems (Ibid). The Tenth Amendment (ratified in 1791) to the US Constitution forms the basic principle of nor prohibited Judicial Review According to Burrows and Garvey (2011) s agency action for which there is no other adequate remedy in a court (is) subject to ed by connection, in that judicial review of an unreviewable determination may occur if t here is a constitutional issue (Ibid).

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45 Unless otherwise dictated by statute, the APA provides for several types of review. The APA states, with regard to the standards of judicial review of an agency action and the determination whether the agency action is lawful: and conclusions found to be (A) Arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) Contrary to constitutional right, power, pri vilege, or immunity; (C) In excess of statutory jurisdiction, authority, or limitations or short of statutory right; (D) Without observance of procedure required by law; (E) Unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or (F) Unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations, the court shall review the wh ole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error ( Ibid). The above provision infers the type of judicial review may differ depending on whether the court is reviewing a formal or informal

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46 Burrows and Garvey further state the standard of judicial review that concerns congressional delegations of legislative authority to agencies, is whether the agency action is regulate in the public interest must always be grounded in a valid grant of authority f rom statutes when examining questions whether an agency action exceeds its congressionally delegated statutory authority (Ibid). Sub Section Conclusion An example o f potential conflict between the judiciary and an administrative agency occurred in 2002 in Colorado. The state agency in question was the Colorado Division of Water Resources (aka Office of the State Engineer). The agency attempted to promulgate water a dministrative rules for the South Platte River basin, however, those rules were appealed to the Water Court for Water Division 1 (South Platte River and its tributaries), whereby the Court determined the agency did in fact act outside its legislated author ity. The State Engineer appealed to the Colorado Supreme Court in Simpson v Bijou Irrigation Co ., 69P. 3d 50 (Colo.2003). What occurred during the period of the appeal and the court hearing, the Colorado State Legislature acted unusually prompt and enact ed legislation that clarified the Rules in Water Division 2 since the language passed in 2002 was general in nature. T he opinion of the state Supreme Court recognized such action, with a bit of angst. This was an interesting event in that an administrati ve agency had been practicing its assumed responsibilities historically. An appeal was made disagreeing with that agency responsibility with the thought that responsibility was the

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47 purview of the judiciary, with the Colorado Supreme Court agreeing. The le gislature on the same day as the supreme court decision, clarifies the duties of the State Engineer in the Arkansas River basin by changing portions of §§37 92 308 The result was some additional technical duties were assigned to the State Engineer and conversely removed from the judiciary. Is it desirous to have three discreet governmental bodies? Yes. At times this relationship is turbulent, at times mildly agitated. Is it desirous to have this arrangement static? No. Similar Legislated Responsibilities of the Colorado Water Courts and the State Engineer Colorado and now recently Montana, are the only prior appropriation state s where water adjudications are the specific and legislatively mandated responsibility of the judicial branch of state government. In the other 8 prior appropriation states and 10 prior appropriation/riparian states, all water adjudications are the specific purview and responsibility of the respective State Engineer. Since 1969, by legislative enactment, Colorado granted authority to the judicial branch of state government for water rights adjudications. Prior to this time, the district course assumed this responsibility. The U.S. Supreme Court decision in Chevron v. NRDC 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694, 21 ERC 1049 (1984) was a landmark decision addressing decisions to be made by administrative agencies and those of the judiciary. To illustrate the application of Chevron v. NRDC to water administration in Colorado, the following is a summary discussion of the case, followed applies directly to current Colorado law concerning water administration.

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48 The purpose of this discussion is not to declare Chevron appl ies directly to the Colorado water court/State Engineer shared responsibilities of developing water augmentation plans, changes in water rights, or temporary non decreed changes in water n, that when a legislative directive, via a statute, that applies to an administrative agency, that deference to the application of that specific statute, is granted to the administrative agency and not the judiciary. The Clean Air Act Amendments of 19 77 (Amendments) impose certain requirements on States that have not achieved the national air quality standards dictated by the Environmental Protection Agency (EPA) in earlier legislation. Regulations, active as of 1981, by the EPA, allow a State to adopt a plant wide definition of the term emitting devices. The meeting the permit conditions, predicated on the alteration (for economic reasons) does not increase total emissions from the plant. This regulation allowed a State to categorize all of the pollution were complex and they did not whether the permit program allowed a stationary source. The National Resources Defense Council, Inc. (Respondents) petitioned for review in the Court of Appeals for the It is noted the EPA Secretary at the time was Ms. Anne

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49 Gorsuch, a CU law graduate (editor of the CU Law Review and Fulbright Scholarship recipient), and she based her administration on the New Federalism approach of delegating Agency functions and servic es to the individual States. The question of law for the U. S. Supreme Court to decide, was the statutory term allow States to consider all pollution emitting devices within the same industry grouping The U.S. Supreme Court decided yes, and reversed the judgment of the Court of Appeals. When an administrative agency is responsible to a congressionally created program, and there are gaps left, implicitly or explicitly by Congress, then there is an express del egation of authority to the agency to make clear or explain a specific provision(s) of the statute by agency regulation. The U. S. Supreme Court considered EPA regulations a reasonable construction of the Congressional intent. This is considered decisions. The U. S. Supreme Court found that the intent, legislative history, and implementation details were lacking in the Clean Air Amendments of 1977. Since the the Agency considered a fair and reasonable interpretation, and therefore produced detailed guidelines. The District of Columbia Circuit Court, in 1980, read the statute as inflexible in the effort to devise a plant wide definition for plants designed to maintain clear air and to deny such a definition for programs designed to improve air quality. The U. S. Supreme Court deferred to the expertise of EPA and did not consider it appropr iate

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50 that the U. S. Supreme Court should switch roles, (nor should the District of Columbia Circuit Court), of a judicial body, to that of an agency body. Discussion on Chevron v. NRDC and Colorado Water Law The following is taken directly from Justice S NRDC: When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue If the intent of Congress is clear, that is the end of the matter; for the court, [p843] as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute. The power of an administrative agency to administer a congressionally created . program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.

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51 There is a similar, if not parallel situation in Colorado. The State Engineer is charged with administering the decrees of the court, but at the same time, his technical expert ise in water resources engineering, is not used to the fullest extent possible. This is because the courts are legislated the exclusive authority of issuing water decrees. The courts are the determiners of both law and fact. The determiners of engineering fact, however should be in a venue other than the courts. The State Engineer interpreted §37 80 120 C.R.S. (Upstream Storage substitute supply historic natural depletion) as allowing the approval of temporary changes (aka replacement plans) in water rights and between 1970 and 2002, the State Engineer reviewed and approved over 1,500 temporary plans without any approved plans being reviewed and overturned by any of the seven (7) water courts in Colorado. In Simpson v. Bijou (200 3 ), the Colorado State Supreme Court affirmed the Water Division 1 (South Platte River basin) decision that §37 80 120, did in fact, not give such authority to the State Engineer. However, it is cri tical to note, o n the same day as Simpson v Bijou Colorado Supreme Court decision the Colorado Legislature enacted an amendment to §37 92 308, which specifically upheld 308 and specifically permitted the Water Division 2 office authority to review and iss ue replacement plans in Water Division 2 (Arkansas River basin and its tributaries) without judicial oversight Possibly, this action was taken to ensure the Bijou decision did not invalidate the Water Division 2 Rules. The process had begun, therefore, where the Colorado General Assembly recognized the responsibilities of the State Engineer are expanded by allowing the review of replacement plans.

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52 S ummary of Section The Colorado judiciary, via the water courts and the administrative agency, government, that are best situated to work in tandem and most efficiently, for the betterment of offered elsewhere in this dissertation, the Colorado Water Conservation Board is also well positioned to augment the water court/state engineer water administration and management t eam. T he P ublic Trust Doctrine (PTD) A Legal Definition: English Law Dictionary Cornell Univ. Law School The principle that certain natural and cultural resources are preserved for public use, and that the government owns and must protect and maintain these resources for the public's use. For example, under this doctrine, the government holds title to all submerged land under navigable waters. Thus, any use or sale of such land must be in the public interest. PTD in Califo rnia and Oregon Conflicting priorities, limited natural resources, environmental activism, activist judges, climate change, state constitutions and projected increases in population in the western United States constitute a recipe for either mandated, man aged and regulated cooperation or endless courtroom warfare. At the center is this conflict is water, a limited and overused natural resource that is predicted to be less in quantity as climate change impacts the arid west.

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53 Two western states, Californ ia and Oregon, are at the forefront of further implementation of the Public Trust Doctrine (PTD) concept in natural resource management and planning. Historically, PTD has involved states with navigable rivers and the concept of state sovereignty over owne rship and control of river stream beds as compared to private ownership and use, as state sovereignty in these instances has been considered a legally reasonable and necessary assumption of duty and control. The continuation of commerce for the public goo d initially underpinned the concept of the PTD Now, however, PTD advocates consider such sovereignty extends to other water based activities and uses, whether or not specifically decreed by state constitutions or existing law. A central foundation as t o the applicability of public trust, hinges on the individual state constitutions assumption on the use of water in its natural state. Some state constitutions, such as California and Oregon, claim the water is under control of the sovereign. In other st ates, such as Colorado, water is specifically authorized for the use of the public (subject to appropriation). There are advocates for the PTD such as legal scholars J. Sax, C. Wilkinson, H. Dunning, R. Johnson, and M. Blumm. At the same time; however, there are those that do not see the same applicability of PTD, and they include R. Lazarus, J. Huffman, and R. Walston. As an example of PTD advocates, Sax concludes (The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, Article has been an extended effort to make the rather simple point that courts have an important and fruitful role to play in helping to promote rational management of our

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54 shown more insight and sensitivity to many of the fundamental problems of resource lling to ask for less than the impossible, the judiciary can be expected to play an increasingly important and fruitful Another PTD advocate, Michael C. Blumm (2010) of the Lewis and Clark Law s review of representative public trust case law reveals the doctrine to be not so much an anti privatization concept as a vehicle for mediating between public tion of the nature of the accommodation between public and private rights that is accomplished by application of the public trust doctrine will no doubt not assuage its libertarian critics, but it might lead to more constructive conversations about the nat ure of R. Walston (1982) offers an alternative viewpoint In the Conclusion portion of an article, Walston states particular use. In addition, can only be addressed under state water rights laws which have been created for that others who wi sh to influence the choice must look to conventional water rights laws, not to the public trust. This is so, not because the trust has never been used in this situation,

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55 Richard J. Lazarus is another legal scholar that of fers an opinion contrary to those PTDs Lazarus (1986) states in an article concerning the Public Trust Doctrine resource conservation and envi ronmental protection goals, is a step in the wrong direction. The doctrine amounts to a romantic step backward toward a bygone era at a time when we face modern problems that demand candid and honest debate on the merits, including consideration of curren The following are recent court cases pertaining to the PTD, and are found in (Getches, 2009): San Carlos Apache Tribe v. Superior Court 972 P.2d 179 (Ariz.1999): The state holds lands beneath navig able waterways in trust for the public. Most jurisdictions have set aside legislative attempts to defeat the trust by Arizona Center for Law in the Public Interest v. Hassell 837 P.2d, 15 8 (Ariz. App. 1991): The above comment for San Carlos Apache also applies to Arizona Center. ., 83 P.3d 664 (Haw.2004): In Hawaii, the court takes a very close look at agency and legislative action to be certain that it conforms to t he public trust doctrine.

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56 Kootenai Environmental Alliance v. Panhandle Yacht Club, Inc ., 671 P.2d 1085 (Idaho 1983): Where the doctrine applies, private uses will be scrutinized to determine if they are inconsistent with the trust. Marks v. Whitney 491 P.2d 374 (Cal.1971): The public trust doctrine has been interpreted by states to allow protection for a variety of public uses including navigation, commerce, fishing and hunting, bathing, swimming, and recreation. State v. Longshore 5 P.3d 1256 (Wash.200 trust doctrine does not encompass the right to gather naturally occurring clams on private p R.W. Docks & Slips v. State 628 N.W.2d 781 (Wis.2001): Denying permit to riparian to finish construction of marina based on habitat protection was not a regulatory taking requiring compensation. Climate change and projected increases in population in the American southwest necessitate a focused accommodation between all relevant parties and conflicting water uses. Unless D enver desires to resemble Phoenix, a modification of thinking on the parts of the courts, legislature, and the populace is needed For example, Colorado benefits from the South Platte River interstate compact negotiated on behalf of Colorado citizens. The only obligation Colorado has to downstream states (Nebraska and Kansas), other than a voluntary 3 states agreement, between Colorado, Wyoming, and Nebraska for fish and bird mitigation in Nebraska, is the delivery of 120 cubic feet per second to the Nebra ska stateline during the irrigation season (April 1 through October 15). If

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57 this amount is not met, Colorado must administer ( curtail partially or entirely ) decreed water rights in Washington County, junior to June 14, 1897. This fact offers potential fo r Colorado, in the South Platte River basin, to generate innovative programs to meet future demands in terms of agricultural and other decreed uses. The Colorado Supreme Court does not recognize the PTD According to Leonhardt and Spuhler (2012), in a case involving the Colorado Water Conservation Board (CWCB) and its responsibilities as the statutory holder of decreed instream flow response to a motion for rehearing, the Court revised these characterizations, deleting all was heard in 1995. It should be pointed out in the following year, 1996, a water law/ natural resources/ and environmental law practicing private attorney, Greg Hobbs, Esq., was selected as the next member of the Colorado Supreme Court by then Governor Roy Romer. To this date, Justice Hobbs has been an advocate of the state constitution declared public property use of water in Colorado. There have been two attempts since 2012 to have ballot initiatives concerning the PTD placed on the statewide ba llots. Both have failed. In addition, the Colorado Water

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58 Congress does not support such an initiative. The above discourse does not imply; however, that Colorado does not practice and accommodate some variants of the public trust doctrine. According to ( http://cwcb.state.co.us/environment/instream flow program/Pages/main.aspx flow water rights on more than 1,500 stream segments covering more than 8,500 miles of stream and 477 natural lakes. The CWCB has completed more than 20 voluntary water 92 102(3), e the activities of mankind with some reasonable preservation of the natural environment, the Colorado water conservation board is hereby vested with the exclusive authority, on behalf of the people of the state of Colorado, to appropriate in a manner cons istent with sections 5 and 6 of article XVI of the state constitution, such waters of natural streams and lakes as the board determines may be required for minimum stream flows or for natural surface water levels or volumes for natural lakes to preserve th CWCB, by the Colorado Supreme Court. According to the New World Dictionary of the American Language, Second College Edition, copy right 1980, Fiduciary Court used an interesting substitute word description, when the parallel meaning of ust, as used by the CWCB to describe its instream program.

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59 The following section offers a detailed discussion on the Public Trust Doctrine in case dealing with the Publ ic Trust Doctrine. Mono Lake California Supreme Court Decision Decision Analysis The following section of this dissertation presents an analysis of the Mono Lake decision by the California Supreme Court in 1983. National Audubon Society et al., Petitioners, v. The Superior Court of Alpine County, Respondent; Department of Water and Power of the City of Los Angeles et al., Real Parties in Interest. 33 Cal. 3d 419 (1983) 658 P. 2d 709 189 Cal. Rptr. 346 Docket No. S.F. 24368 Supreme Court of Califo rnia February 17, 1983 For the State of California, the California Supreme Court Decision in National Audubon Society v. Department of Water and Power of the City of Los Angeles, (aka Mono Lake decision), was a catalyst for the Public Trust Doctrine (PTD) and its relationship with the existing prior appropriation doctrine. Over time, the PTD expanded from its original state sovereign protections on navigable streams in Illinois, to an environmental activist banner for all matters related to environmental protection of streams, lakes, and shorelines. The Mono Lake decision offers insight to the relationship between the state agency discretion and expertise, judicial oversight, and the environmental activist desire to influence both.

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60 The following three s ubsections in this dissertation present the following: (1) a detailed analysis of the decision itself, (2) a formal legal case briefing, and (3) a summary of the Mono Lakes decision influence on water resources management, administration, and subsequent Ca lifornia judicial opinions. Analysis of the Mono Lake Decision The citations and references for this section are taken directly from the California Supreme Court decision. Mono Lake is saline, contains no fish and is located adjacent to the eastern entr ance to Yosemite National Park. Ibid. p. 423. However, a large population of brine shrimp provides a food source to nesting and migratory birds. The lake is fed by five streams (Mill, Lee Vining, Walker, Parker and Rush Creeks) with runoff generated from snowmelt originating in the Sierra Nevada. Ibid. p. 424. The lake has no natural outlet. The California Water Resources Board granted the Department of Water and Power of the City of Los Angeles (now called Division of Water and Power DWP), a permit to appropriate essentially all of the flow in four of the five streams flowing into the lake. Ibid. In 1970, a second diversion tunnel was constructed that commanded almost the entire flow of the tributary streams. Ibid. The plaintiffs filed suit to enjoi n DWP from diverting Mono Lake tributary water on the theory the public trust protects the shores, bed and waters of Mono Lake. Ibid. p. 425. This suit, filed in superior court, was transferred to federal district court, which ourts determine the relationship between the public trust doctrine and the water rights system, and decide whether plaintiffs must exhaust

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61 ed summary judgments against plaintiffs on both matters, ruling that the public trust doctrine offered no independent basis for challenging the DWP After the decision of the superior court, the plaintiffs petitioned the California Supreme Court. time two systems of legal thought: the appropriative water rights system which since the days of the golf rush has dominated California water law, and the public trust doctrine which, after evolving as a shield for the protection of tidelands, now extends its M ono Lake, but at the same time, the need for the water demands of Los Angeles. over the navigable waters of the state and the lands underlying those waters. This authority applies to the waters tributary to Mono Lake and bars DWP or any other party from claiming a vested right to divert waters once it becomes clear that such divers ions hard At the same time, the rights to appropriate water even if diversions har m the state agencies and the public trust advocates, atte mpt to minimize harm to each

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62 the Water Board and its standing as the primary agency responsible for water matters. However, in this decision, the cour right controversies. The Legislature, instead of overturning that precedent, has implicitly acknowledged its vitality by providing a procedure under which the courts can refer water rights disputes to t allocation and administration in California is the purview of administrative agency authority, along with the concurrent powers of the courts and legislature. This declaration appears to illust rate a new power of the courts, where previously, an administrative agency was the primary authority. The court implicitly ranks itself as exercise concurrent jurisd The court had three aspects of the PTD to consider and offer an opinion: (1) the purpose of the trust, ( 2) the scope of the trust as it applies to the tributaries of Mono Lake, and (3) the powers and duties of the state as trustee of the public trust. Ibid. p. 434. The court, in this case, relied in part, on their opinion in Marks v. Whitney supra, 6 Cal. 3d protect, however, are recreational and ecological the scenic views of the lake and its shore, the purity of the air, and the use of the lake for nesting and feeding by birds. Under Marks v. Whiney it is clear that protection of these values is among the purposes of the expanded to incorporate a growing concern of the welfare of the environment.

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63 The court relied on People v. Gold Run D. & M. Co. supra, 66 Cal. 138 (4P. 1152) and People v. Russ (1901) 132 Cal. 102 (64 P. 111), to formulate their opinion on the present case, relative to whether the Public Trust Doctrine applies to upstream tributaries of Mono Lake. Ibid. p. 436. In Gold Run the court recognizing that its decision might destroy d mining industry, the court affirmed invasion of t Russ the court directed a lower court to make a finding relative to the impact of constructing dams on the navigability of a downstream river or lake. Ibid. As a result of these two aforementioned developed in California decisions, protects navigable waters from har m caused by diversion of non navigable Relative to the state and the continuing power of the state as administrator of the public trust, a power which extends to the revocation of previously granted rights or to the enforcement of the trust against lands long though free of Supreme Court decision was one of the preeminence of state sovereignty, supported by the expertise and experience of state administrative agencies and the parallel power of the courts. The c ourt explored, examined, and commented on the relationship between the California water rights system and the Public Trust Doctrine in their decision. Ibid., p. 445. While the followers of the public trust doctrine declare the prior appropriation

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64 doctrin e is subservient, the water board considers the public trust doctrine to be subservient to the prior appropriation doctrine. The California Supreme Court, however, trust doctrine and the water rights system embody important precepts which make the law more responsible to the diverse needs and interests involved in the planning and The court reached the following three conclus ions; (1) The state, as sovereign, has harmful to the interests protected by Water Board, has the power to grant usufructuary licenses that will permit an appropriator to take water from fl owing streams and use that water in a distant part of the state, even though this taking does not promote, and may unavoidably har m the trust population centers in California have relied upon such appropriations, and it would be an he state has an affirmative duty to take the public trust into account in the planning and allocation of water resources, and to protect public trust uses made by the court

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65 some responsible body ought to reconsider the allocation of the waters of the Mono Section 6, located on page 452, of the court decision contained the conclusion. T plaintiffs can rely on the public trust doctrine in seeking reconsideration of t he allocation bid. This decision upheld the public trust doctrine as applying to non navigable waterways and, in California, added this doctrine of protecting the environment, as co equal to the needs of water appropriators. To the extent, this decision is foundatio nal to subsequent water allocation decisions, has been studied extensively and is contained in the following section of this dissertation. legal case brief separates a case into the following component parts: (1) brief summary of the case, (2) rule of law, (3) facts, (4) issue(s), (5) the opinion of the court, and (6) discussion. The following section of this dissertation is a case brief for the National Audubon Socie ty v. Superior Court The brief was developed from the California Supreme Court decision discussed and presented earlier in this dissertation. Case Brief National Audubon Society v. Superior Court Citation 22 III. 33 Cal. 3d 419, 189 Cal. Rptr. 346, 658 P.2d 709, 21 ERC 1490 (1983)

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66 Brief Fact Summary : The Department of Water and Power for the City of Los Angeles constructed structures to divert water from four of the five tributaries flowing into Mono Lake. The impact of these historic diversions decr eased the size of Mono Lake (a saline water body) and the ecology of the lake. Rule of Law : The public trust doctrine whenever possible, is considered by the State of Facts : Five l ive streams feed into Mono Lake and they Mill, Lee Vining, Walker, Parker, and Rush Creeks. Snowmelt from the Sierra Nevada Mountains feed the streams, and the Department of Water and Power for the City of Los Angeles (DWP) obtained a permit to appropriat e the entire flow from four of the five streams. In 1970, the DWP constructed another diversion structure to divert most of the flow from all five streams. Mono Lake is a saline water body that supports brine shrimp that supply food to nesting and migrati ng birds. The volume of water in Mono Lake has been reduced by one third because of the tributary stream diversions. One result of the decreased info, is the development of a peninsula, where historically two islands were situated within the boundary of the lake. Predators are now have access to the migrating birds because of the peninsula. The plaintiffs in this case, filed suit to stop the DWP diversions on the theory that a public trust protects Mono Lake. Issue : Does a public trust invalidate the C tributary streams? Held : The legislature granted the California Water Resources Board the power to grant use licenses that permit appropriation of water from streams, even if the use results in

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67 harm to trust uses at the source stream. The court recognized the conflict between the public trust doctrine and its historic beginnings to the current application in the present case, to protect Mono Lake. The court recognized the population and economy of California rely on the appropriation of large quantities of diverted water, whereupon the court decided the state has an affirmative duty to take into account, public trust uses whenever feasible. The court ordered a study be prepared to evaluate the impact of the stream di versions upon the public trust of Mono Lake. Discussion : The court had to reconcile two conflicting practices, the first being the prior appropriation doctrine, and the second, the public trust doctrine. The court found that neither concept negated the other Post Mono Lake Decision Statistical Analysis After the Mono Lake decision by the California Supreme Court in 1983, based upon the specific comments and opinions of the court, a reasonable assumption would be the impact of the case would be influent ial on subsequent related cases. In his research of post Mono Lake cases, Owen found surprising and interesting results. (Owen, 2012) There were existing U.S. federal environmental laws, including the Clean Water Act and Endangered Species Act, which cou pled with the Mono Lake decision that could frame future court opinions and form a new foundation for environmental doctrine a ctivism. The California Supreme Court, in the Mono Lake decision, found that state when dealing specifically to water. Ibid p. 1101 The decision was hailed as revolutionary Lake Case as the sixth most exce llent case in the history of American environmental

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68 Owen reviewed all the orders and de cisions of the California State Water Resources C 1103 He specifically analyzed the context of the decisions to assess if, in fact, the court protec The following listing provides a summary of findings by Owen. For clarity, direct quotations, when appropriate, are used. reasoning for ordering anyone to do any opinions have not offered any doctrinal expansion. Ibid. p. 1105 On the state agency level, however, there is evidence of more direct influence. roximately half of its decisions and approximately eight percent of its order, the Board cites the public trust doctrine as a basis for environmentally iscern, the public trust Ibid. environmental law system, and has accomplished little outs

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69 C shadow of federal requirements. Perhaps the most important come from the of deferential standards of review, most disputes are won or lost before administrati C WRCB has a continuing obligation to re examine and, sometimes, adjust existing water rights. In summary, Owen found pre existing water rights are generally secure from public trust doctrine intervention. However, the non uniform direct application of the public trust doctrine in California court decisions illuminates the uncertainty of how best to manage wa ter resources. For water managers and state agencies responsible for water administration, the unclear application of a heralded landmark court decision, adds to the unstable nature of resource allocation and planning. Now there are several players in Ca lifornia water resources management and resource allocation including the state courts, the state Supreme Court, the C environmental activist organizations, existing federal environmental laws and agencies and the ultimate water users. Each has a part in effective natural resource stewardship, however, if discreet boundaries are not set, chaos, uncertainty, and inefficiencies may result.

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70 C omments on Chapter III Colorado Governor Hickenlooper recently s igned a directive for the Colorado Water Conservation Board to develop a draft statewide water plan by December 201 4 and the final plan by December 2015 I f Colorado continues to rely on the state constitution dictated property characteristic of use of water by the public and rely strictly on the covenants of the prior appropriation doctrine, the results may conflict if a Public Trust Doctrine is voted in by Colorado voters With climate change and its predicted reductions in stream flow and increased temperatures, Act and Water Quality Act, it is best for Colorado to be prepared to react proactively and modify what is necessary to enable reasonable and prudent management of its water resources. As the stewards of its own resource, Colorado cannot afford to do less. agency that should be legislatively assigned (with consultation with the Color ado Division of Water Resources) the overall duties and responsibilities of managing the to render decisions concerning use, place of use, places of storage, during ti mes of declared drought. In addition to the water courts being consulted, the Colorado Division of Water Resources should also be consulted as to whether the proposed decision of the CWCB can be practically administered. CWCB should also have sufficient funds to buy, trade, lease water rights from agreeable decreed water right holders.

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71 CHAPTER I V FLOW THROUGH POROUS MEDIA AQUIFER STORAGE AND RECOVERY (ASR), AND A CASE STUDY This chapter of the dissertation will present basic alluvial fluid hydraulics, current practice and methodology of aquifer storage and recovery, worldwide, in the U.S.A. and a Case Study. According to the EPA, as of 2009, there were 748 project sites containing wells used for aquifer recharge and aquifer storage and re covery. (EPA, 2009) This discussion of ASR includes the diversion structure from the surface water source, buried pipe flow from the diversion structure to the storage vessel, fluid flow within the perforated piping in the storage vessel, flow within the alluvial material, and fl ow out of the storage vessel via a pumped well discharge back to the surface water source. Diversion Structure Hydraulics A possible diversion structure from a river or stream can involve a concrete box with an operable vertical slide gate or an uncontr olled trapezoidal weir, square weir, with an outlet conveyance pipe connected directly to the diversion structure. Each design must fit the needs of the end user and therefore there are various design options available. The slide gate can be controllable via electronic means, or an onsite wheel mechanism to physically open or close the slide gate. In areas where surface water source quality is an issue, a below grade stream collection infiltration gallery can be designed to offer preliminary water trea tment including solids removal. As an alternative, an adjacent well can be drilled near to the

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72 stream, which also provides a reliable water supply while also providing preliminary water treatment. The weir equation can determine the flow through such d iversion structures. A form of the equation is: Q = C w Lh 3/2 where C w is a coefficient that accounts for the velocity of approach, L is the length of the weir, and h is the head above the crest of the weir. Various types of weirs include the broad cres ted weir, Cipolleti weir, proportional weir, side flow weir, and submerged weir. (Linsley et al, 1992) Often in Colorado, stream diversion structures have recording devices to transmit via satellite, flow data to State water administrators who can view real time flow values via computer. Later in this chapter, water quality issues are addressed to illustrate conditions for the satisfactory operation of an ASR facility. Accordingly, water pretreatment facilities at the diversion point, maybe required and therefore, the hydraulics of the stream diversion could be complex. Delivery Pipe F low H ydraulics starting and ending elevations. The equation contains an elevation hea d component, a pressure head component, velocity head component, and a term for energy loss due to systems, when comprised of fluid within a pipe. If the starting elevati on of a pipe is

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73 higher than the ending elevation of the same pipe, it is possible to determine the flow rate and pressure of the fluid at the lower elevation of the pipe. For example, if a pipe connects points A and B, (A is higher in elevation than B), with no exposure to atmospheric pressure and is under constant pressure between both points, as a result of the conservation of energy principle, these terms are equal to each other when comparing the beginning and ending points as shown in the following equation: Z a + P a / + V a 2 /2g = Z b + P b / + V b 2 /2g + h 1 Where Z a Z b = the vertical distance between points A and B, P/ is the pressure head, V is the velocity of flow, and h 1 is the total head loss between the high point A and the low point B. Hydraulics of Perforated Pipe Under Drains Murphy (2013) evaluated hydraulic performance of perforated pipe under drains when surrounded by loose aggregate as partial fulfilment of the requirements for the Degree Master of Science Civil Engineering a t Clemson Unive rsity. He performed the work to evaluate hydraulic performance of perforated pipes since the stage storage relationship is complex and not well understood. Murphy identified the complexity of various flow regimes, including fluid flow through the porous media (aggregate), orifice flow into the pipe, and finally, pipe flow laterally along the length of the pipe. Murphy (2013) concluded in the saturated flow condition, flow direction is vertical when the water surface is parallel to the pipe. In the unsa turated condition, the

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74 water level decreases along the channel and the direction of flow is predominately lateral toward the pipe outlet. He concludes with the following. satu rated (as it was defined in the experimental results) to determine if the flow condition is saturated or unsaturated. Thus, it becomes completely dependent upon whether the water surface profile above the pipe is parallel to the pipe (saturated) or not (un saturated) and if the pipe is equations are used to develop an equation for flow rate when compared to water height above the aggregate cover. Flow Through Porous Media Fundamentals ASR vessel hydraulic flow through a porous media can be equation. The following material was presented by (Bedient, 20 14 ) in a lecture on at Rice University. Developed in 1856 by French engineer, Henri Darcy, developed empirically the flow of water through a permeable formation (sand) is proportional to the distance from the top and bottom of a soil column, and the hydraulic conductivit y (K) is the constant of proportionality. In equation form: V= Q= KA(dh/dl),and note the negative sign results from going from a higher to lower energy level.

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75 Ranges of K, which represents a measure of flow ability through porous media, are as follows: Gravels 0.1 to 1cm/sec Sands 10 2 to 10 3 cm/sec Silts 10 4 to 10 5 cm/sec, and Clays 10 7 to 10 9 cm/sec 1. Saturated flow and unsaturated flow 2. Steady state and transient flow 3. Flow in aquifers and aquitards 4. Flow in homogeneous and heterogeneous systems 5. Flow in isotropic or anisotropic media, and 6. Flow in Rocks and granular media The Darcy and seepage velocity is not accurate since it assumes the flow occurs uniformly across the flow cross section. In reality, the flow takes place in the interconnected pore channels. (Bedient, 20 14 ). McKinney presented a lecture at the Universit h eterogeneity and a nisotropy, r Aquifer Storage Figure 2 s 1) Storativity (S), the ability of an aquifer to store water, 2) the change in volume of stored water due to change in

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76 piezometric head, and 3) t he volume of water released from an aquifer per unit decline in piezometri c head. Figure 2 Unit Water Released from an Aquifer Under a Unit Head in Decline (McKinney, 2014 ) The alluvium of the South Platte River basin, located adjacent to and under the flowing stream, is considered an unconfined aquifer since the water is produced by draining pores and there is no confining layer above the alluvial materials The storativity of an unconfined aquifer (S y specific yield) depends on pore space drainage. (McKinney 2014 ) The water that remains in the pores is specific retention, S r Therefore, S y S r Porosity is defined as the (volume of the void space)/ (total bulk volume). Therefore, V drained = S y hA. McKinney presents a graphical relationship between porosity, specific yield, and spec ific retention and is illustrated on Figure 3

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77 Figure 3 Relationship between Porosity, Specific Yield, and Specific Retention for a Range of Soils ( McKinney 2014 ) McKinney provided a summary of the Darcy experiments and is shown on Figure 4 Figure 4 From Lecture ( McKinney 2014) illustrated on Figure 5

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78 Figure 5 Illustrating Value of Hydraulic Conductivity K, is a Constant for a Given Materia l (McKinney, 2014 ) McKinney presented two slides on hydraulic conductivity and are presented on Figure 6 and Fi gure 7 Figure 6 Hydraulic Conductivity Lecture Slide ( McKinney, 2014)

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79 McKinney presented a detailed schematic of hydraulic conductivity ( K) for a variety of materials and K values with different units and is presented as Figure 7 Figure 7 Hydraulic Conductivity for a Variety of Soil Types (McKinney, 2014 ) Soil Survey Technical Note 6 | Natural Resources Conservation Service, by Figure 8

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80 F igure 8 Illustration Showing the Constant Nature of Hydraulic Conductivity K (NRCS) There exists a liner relationship between the variables J and I and the slope of the line (J/I) illustrates the relationship between flux and hydraulic gradient. The fl ux represents the quantity of water moving in the direction of the hydraulic gradient. The hydraulic conductivity, or slope K, defines the unidirectional flow in saturated flow. (NRCS) Flux is a rate and hydraulic gradient is the force behind the flux, and the hydraulic conductivity is the proportionality constant that defines the two variables. Permeability is a term that has three separate, but related meanings: The following definitions are found in NRCS Technical Note 6. 1. In soil science, perm eability is defined qualitatively as the ease with which gases, liquids, or plant roots penetrate or pass through a soil mass or layer ( SSSA, 2001 ).

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81 2. "Intrinsic permeability" or permeability ( k ) is a quantitative property of porous material and is controlled solely by pore geometry ( Richards, 1952 ). Unlike saturated hydraulic conductivity, intrinsic permeability is conductivity after the effect of fluid viscosity and density are removed. It is calculated as hydraulic conductivity ( K ) multiplied by the fluid viscosity divided by fluid density and the gravitational constant. Permeability ( k ) has the dimension of area (e.g., cm2). 3. In some cases, permeability has been used as a sy nonym for Ks even though some other quantity was originally used to convey permeability. For example, in the permeability studies by Uhland and O'Neal ( 1951 ), flux (under hydraulic gradient greater than one) was the true quantity measured to convey a soil flux is numerically equal to Ks only when the hydraulic gradient is equal to one. Therefore, the flux values reported in these studies were not synonymous with Ks Over time, however, the original flux values from Ks without qualification. This misrepresentation has led to confusion and misapplication. NRCS Technical Note 6 states the following characteristics when comparing Saturated Hydraulic Conductivity (K s ) and Intrinsic Permeability (k). K s is temperature dependent while k is not. K s is fluid viscosity dependent while k is constant regardless of fluid viscosity. Both saturated hydraulic conductivity and permeability changes with change in structure. Finally, Ks dimensions depend on flux and gradient and time is a

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82 component, as compared to intrinsic permeability where dimensions are length 2 while time is not a component. (NRCS) The material presented herein applies to the present study of alluvial storage an d recovery in the South Platte River basin in Colorado. Groundwater models, such as MODFLOW (a 3 dimensional modular finite difference groundwater model) are based predicted base d upon soil parameters such as hydraulic conductivity, geometric measurements of area and sample length, and difference in energy levels. MODFLOW modeling was used as part of this research and the results are presented in Chapter VI The next section pro vides a summary of ASR facilities worldwide and in the US. Alluvial Storage and Recovery International Subsurface dams are not a new concept. Ishida, et al (2011) compiled the following data on existing ASR facilities and is presented in Table 1.

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83 Table 1 Listing of Alluvial Storage and Recovery Projects World Wide (Ishida et al, 2011)

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84 Hanson and Nilsson (1986), classified underground dams into two types: those that are constructed below ground level that stop the flow of a natural aquifer, and (2) sand storage dams where the sand behind the above ground impermeable barrier, stores the water. Figure 9 from the Ishida article, depict s two types of underground dams. Fig ure 9 Two Section Views of Underground Dams (Ishida et al, 2011) Underground W ater S torage in Australia Australia has a concentrated effort in maximizing storage of water underground adopted as a mainstay in their water resources management. MAR is also known as water banking, where water is stored underground when not needed and then pumped to the surface in times of drought. Australia relies on underground storage since evaporation rates ofte n exceed annual rainfall. Various schematics of MAR designs are presented below. Figure 10 is from page 5 of the MAR report, and the source of the figure is Martin and Dillion, (2005), extended in EPHC, 2008.

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85 Figure 10 Section Views of Various ASR Con figurations ( Martin et al, 2005) page 2): Securing and enhancing water supplies Improving groundwater quality

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86 Preventing salt water from intr uding into coastal aquifers Reducing evaporation of stored water, or Maintaining environmental flows and g roundwater dependent ecosystems, which improve local amenity, land value and biodiversity. Consequential benefits may also include: Improving coastal water quality by reducing urban discharges Mitigating floods and flood damage, or leading edge in the desi gn and implementation of ASR schemes that use low quality Martin and Dillion summarized the advantages and disadvantages of 1) recharge wells, 2) infiltration basins, and 3) bank filtration. Table 2 and Table 3 summarize their findings.

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87 Recharge Wells Table 2 Recharge Advantages and Disadvantages to Deep Aquifers Using Wells (Martin et al, 2005) The summary of ASR, from Martin et al, using infiltration basins is presented on Table 3.

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88 Table 3 Recharge Enhancement Using Infiltration Basins Advantages a nd Disadvantages (Martin et al, 2005) For the purposes of pre treatment, Martin et al (200 5 ) found bank filtration have the following advantages: Removal of particles, bacteria, viruses and parasite, Removal of easily biodegradable compounds, including algal toxins, Reduction of persistent organic contaminants and heavy metals, and Underground Dams in Brazil and Kenya A summary report of underground dams in Brazil and Kenya was performed by Foster and Turnoff, and was sponsored by the World Bank in 2004. Figures 11 and 12 are pictures of a subsurface dam constructed in Brazil followed by a mature sand dam in Kenya.

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89 Figure 11 and Figure 1 2 ASR Projects in Brazil and Kenya, (Foster et al, 2004) The dam in Brazil, shown on Figure 11 is cut into the alluvial cover to intercept groundwater flow and the Kenya sand dam shown on Figure 12 is built in a streambed and a sediment saturated aquifer is formed upstream of the dam embankment. Brazil Under ground Dams dams, similar to Figure 11 were constructed and are characterized by the following descriptions: 1. ught emergency job without technical advice and follow up; they were manually excavated, incorporated plastic membranes and a large diameter concrete ring waterwells 2. Similar sized structures co nstructed under local initiative by NGOs with specialist advice, but were filled with only recompacted clay and without a well for water abstraction. 3. Much larger structures up to 10 m depth (in acres of thicker alluvial cover) located by technical criteria and constructed with the aim of supporting small

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90 scale irrigated agriculture in areas with some existing irrigated cultivation they benefited from use of mechanical excavators and incorporated impermeable plastic membranes, improved large diameter water wells and some technical A site survey was conducted of 151 of the known 500 dams, and 37% were inactive, 13% were in good condition, and the remaining 50% were in active multi purpose use. (Foster et al, 2004) Kenya Underground Dams The World Bank report states there are 400 streambed dams in the Kitui District of Kenya that are constructed of various dimensions depending on site location. The average dam is between 2 to 4 meters in height and 500 meters in length. The dam embankmen t is consists of facing filled with brinks or stones and a timber frame filled with stones and mortar. These dams use inexpensive technology and can be constructed with local labor with available materials. The cost for a reservoir that stores about 2,00 0 m 3 is about $7,500 and 40% of the construction cost is the responsibility of the community. (Foster et al, 2004) Two schematic examples of groundwater dams and sand dams contained in the Foster et al World Bank 2004 report are illustrated on Figure 13

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91 Figure 1 3 Section Views of ASR Examples (Foster et al, 2004 ) ASR Projects in the United States Several states have ASR projects operating and the following sections are brief descriptions of each states project. Arkansas The Mississippi River Valley alluvial aquifer underlies about 32,000 square miles of Missouri, Kentucky, Tennessee, Mississippi, Louisiana, and Arkansas. (Czarneck i et al 2002 ) F igure 14 from the USGS report, illustrates the extent of the alluvial aquifer

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92 Figure 1 4 Mississippi Valley Alluvial Aquifer (USGS) In Arkansas, the alluvial aquifer is about 250 miles long and 50 to 125 miles wide and the water is typically used for irrigation of rice, fish farming, and other agricultural products. (Czarneck i e t al) The hydrologic characteristics of the alluvium are favorable. The thickness ranges between 50 and 150 feet and there is a silt and clay layer between 10 and 50 feet thick, above the alluvium. Typical irrigation wells produce between 300 and 2,000 gallons per minute and average 800 gallons per minute. (Czarneck i et al) However, the effect of groundwater pumping has been a steady decrease in the elevation of the historic, pre pumping groundwater table. Figure 15 illustrates a graph that shows t he decline in three agricultural wells.

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93 Figure 1 5 Drawdown Curves from Three Wells in Arkansas in the Mississippi River Alluvium (USGS) Arkansas has begun programs in conjunctive use and artificial recharge to the aquifer in an attempt to stabilize th e groundwater table. (Czarneck i et al) Utah Weber Basin Aquifer Storage and Recharge Project Ogden, Utah is located north of Salt Lake City and west of the Wasatch Range. Figure 16 is a schematic of the area. Figure 1 6 Ogden Utah Schematic Illustrating the Drainage Basin, Adjacent to the Great Salt Lake (USGS)

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94 The Weber River Aquifer Storage and Recovery Project uses water diverted from the Weber River to recharge the aquifer by using surface ponds. Figure 17 shows the recharge ponds. Figure 17 Pilot Infiltration Basin s (USGS) The recharge ponds are part of a pilot project between the District and the US Bureau of Reclamation in an attempt to decrease or stop the drop in groundwater elevation. The pilot project is based on ea rlier fieldwork performed by the Bureau that identified potential recharge sites. Initially, an infiltration rate of 7 cubic feet per second per acre was determined to exist in the area. The District intends to expand to a permanent large scale recharge facility. California ASR Projects City of Long Beach The City of Long Beach is constructing four new ASR wells and will have the capacity to both inject and extract water to store up to 13,000 acre feet per year This

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95 project will also enhance the saltwater barrier, by prohibiting ocean salt water from mixing with potable city water supplies. In addition, Long Beach is teaming with the City of Lakewood, California to construct an ASR well to allow storage of up to 3,60 0 acre feet of imported water during normal to wet hydrologic years. This water will be available to both cities during times of drought or other emergency need. City of Santa Clara The City of Santa Clara, located south of San Francisco, on the south edge of the bay, has had historical subsidence issues due to excessive groundwater pumping. Figures 18 and 19 show the subsidence between 1914 and 1978. (Ingebritsen and Jones 1999 ) Figures 18 and 19 from Santa Clara Water District ( Ingebritsen et al, 1 999 ) The City of San Jose was the site of the most dramatic land subsidence in the area. Between 1910 and 1995, the land surface elevation changed from 98 feet above sea level to about 84 feet above sea level. At the southern end of San Francisco Bay, l and

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96 sank from 2 to 8 feet by 1969, resulting in 17 square miles of dry land being below high tide level. (USGS report) The decline in land surface resulted in a decline of artesian pressures, which increased the effective overburden load on the water bea ring sediments, which subsequently compacted. Figure 20 is a graph of historic land subsidence, total ground water pumping and imported water used to recharge and stabilize land subsidence in the San Jose region. Figure 20 Graph of Historic Land Subsidence ( Ingebritsen et al 1999 ) A map of the Santa Clara Valley Water District is shown on Figure 21 and illustrates elements of the Districts recharge facilities and surface water conveyance structures.

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97 Figure 21 Santa Clara Valley Water District Water Recharge Facilities ( Ingebritsen et al, 1999 ) Surface water is imported from northern and eastern California via the Hetch Hetchy and the Federal San Felipe Water Projects. About 40,000 acre feet of the total 150,000 acre feet of imported surface water is used for groundwater recharge. (USGS report) Figure 22 from the Santa Clara Water District report shows the positive impacts to groundwater level by importing surface water.

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98 been sufficient to reverse the historic land subsidence. (USGS) Figure 22 Depths to Water in Santa Clara Valley since 1 915 ( Ingebritsen et al, 1999 ) The natural conditions for underground storage depend on location. In the upper reaches of mountain streams, the alluvium is sufficient for storage, however, near the Bay area the finer grained sediments impede recharge. (US GS) he first percolation basins in the Santa Clara Valley relied on local surface runoff supply that proved insufficient to offset groundwater extraction. During the mid surface water supplies were made avail reversed. (USGS) Table 4 presents a summary of ASR facilities in Arizona, California, Texas, Colorado, and Nevada, from Brand ( 2008 )

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99 Table 4 Summary of Various ASR Projects in the US (Brand, 2008) and can result in problematic results if existing water rights are injured. Lessons Learned from 2 0 ASR Projects Brown et al. (2006) analyzed 50 ASR projects from the United States, England, Australia, India, and Africa. T ables 5, 6, and 7 summarize 20 ASR sites worldwide.

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100 Table 6 summarizes ASR non br ackish water site data for another seven sites.

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101 and labelled as Table 7 is the final compilation of results from the report.

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102 Table 7 Brown summarized his findings as follows: 1. potential solution is to incorporate regular back flushing programs. Also entrapment of air results in clogging and this can be rectified but is difficult and time consuming. 2. Water quality can affect usefulness of ASR. Arsenic, iron, manganese or other metals can be released from intrinsic minerals. The use of ozone as a dis infectant can add additional oxygen to the source water and therefore result in geochemical reactions.

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103 3. Hydraulics are important when evaluating multi well clusters. Unless the ASR facilities are non tributary to adjacent wells via perimeter slurry walls o r other impermeable materials, impact to other area wells could occur. Well interference can be modeled to evaluate potential drawdown to other structures. 4. ASR well designers need to incorporate monitoring equipment for each system, such as sampling por ts on recharge or discharge lines to allow for real time Section Summary Alluvial Storage and Recovery is not a new concept, in either the United States or elsewhere internationally. Depending on site location, in situ soil conditions, and project design, there are various levels of operational success. Each potential project site requires a detailed analysis to include influent water quality, soil chemistry and physical properties, and intended use of the recovered water. In the era of climate change and increasing population, ASR offers a viable alternative to historic methods of water storage. ASR costs are less than above ground water storage (dams and reservoirs) and water loss due to the evapora tion is significantly decreased. In areas where saltwater intrusion is problematic, ASR offers a dual role including storage and a barrier to migration of unusable waters. In areas where historic over pumping of groundwater has resulted in land subsidence ASR offers a novel use of imported surface water supplies to combat further subsidence while concurrently, providing a groundwater supply for subsequent pumping and usage. Finally, in areas with limited resources to fund construction of traditional abo ve ground water storage facilities or areas with limited technical expertise, ASR provides an alternative water storage vessel.

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104 This section of the Dissertation contain s a Case Study for a theoretical ASR facility located adjacent to the South Platte River near Brighton, Colorado. Case Study South Platte River ASR ASR in the South Platte River basin is presented in this section of the dissertation. A case study was developed to evaluate the application of such a storage methodology in Colorado. Top ics presented in this chapter include: (1) Background Information, (2) Site Study Location, (3) Water Supply, (4) Water Treatment, (5) Water Conservation, (6) Case Study Benefit/Cost Analysis, (7) Construction Cost for Above Ground Reservoirs, (8) Construction Cost for ASR Water Storage Vessels (9) Cost Comparison between Surface Reservoir / ASR Vessels (10) Legally Available Raw Water Analysis (11) Free River Periods, and (12) Fully Reusable Effluent Water Background Information In 2007, a study by the Colorado Water Conservation Board assessed the volume of potential alluvial storage in the Arkansas River basin and South Platte River basin in Colorado. Figure 23, is a graphical representation of alluvium in both the Arkansas and South Platte Rivers.

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105 Figure 23 South Platte River and Arkansas River Alluviums (CWCB, 2007)

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106 Table 8 illustrates the regional extent of alluvium and estimated storage capacities. Table 8 Available Storage Capacity South Platte River Basin All uvium (CWCB, 2007) Subregion Number Subregion Name Available Storage Capacity (ac ft) Available Storage Capacity (ac ft/acre) 1 SP Denver Metro 353,000 3.0 2 SP Metro to Greeley 169,000 1.7 3 Cache la Poudre River 291,000 1.8 4 Upper Beebe/Box Elder 268,000 3.5 5 Lower Beebe/Box Elder 61,000 2.5 6 SP Greeley to Ft. Morgan 94,000 1.4 7 Upper Lost Creek 1,260,000 10.6 8 Lower Lost Creek 157,000 5.7 9 Upper Kiowa Creek 234,000 5.0 10 Lower Kiowa Creek 806,000 9.5 11 Upper Bijou Creek 466,000 7.4 12 Lower Bijou Creek 1,067,000 8.5 13 Badger/Beaver Ck. 311,000 4.4 14 SP Ft. Morgan Area 968,000 8.5 15 SP Balzak to State Line 890,000 4.8 16 SP South Park 899,000 1.2 of South Platte River SP South Park data from Topper et al, 2004. The criteria for site selection was based on available alluvium and the distance to pump the al luvial stored water back to the metro area for subsequent use, a shorter distance would save total project costs by shortening the pipe installation requirements. Therefore, the area selected for study was between the northeast portion of the metro area, downstream of the Denver Metropolitan Wastewater Treatment Plant and Brighton, Colorado.

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107 Site Study Location Brighton, Colorado The information contained in this section was located in the City of Brighton web page, (2015) The City of Brighton is located about 15 miles northeast of the Denver metro area and as of 2013, has a population of 35,719, which increased 70.9% since 2000. The median age is 32.2, while the median age for the State of Colorado is 38.5 years. In 201 2, the median per capita income was $22,689. The following graphs illustrate average temperature, precipitation, wind speed and snowfall in the Brighton area. Figure 24 Brighton, Colorado Weather Data (City of Brighton website, 2015) Illustrative of the above graphs are the high summer temperatures and high wind speeds, which would predict high evaporative rates for above ground water storage reservoirs. Therefore, the selection of Brighton as a case study site for alluvial storage

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108 and recovery wo uld take advantage of evaporative loss savings in addition to the relatively close distance back to Denver metro area municipalities. The Water Utilities Department of the City of Brighton is second only to Police Protection in terms of construction exp enditures (as of 2002) with $90.12/resident compared to $184.58/resident. For current operations, the Water Utilities Department is third behind Parks & Recreation and General at $86.73/resident. Finally, in terms of capital outlays, the Water Utilities Department is second to Police Protection, at $11.34/resident. The revenue generated by the Utilities Department for sewerage is $67.19/resident. As of 2002, the Water Utilities Department held long term debt of $12,833,000 or $359.28/resident. Water S upply basin, Beebe Draw alluvium below Barr Lake and about 33% is pumped from the City of Thornton, Colorado. The specific water sources include Beebe Draw Wells A, B, C, and South Platte alluvium wells 7R, 11, 12, 13, 17, and 18, in addition to surface water purchased from Thornton. Water Treatment The City of Brighton operates one of the largest reverse osmosis treatment plants west of the Mississippi River by provid ing over 1 billion gallons (about 3,000 acre feet) of treated water to its customers annually. The City also operates the new Greensand filter plant that treats alluvial water from Beebe Draw, by removing manganese and then blending with the treated water from the Reverse Osmosis plant.

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109 Water Conservation During the non irrigation season (November 1 through April 1), irrigation is prohibited, except for trees and bushes. Also, irrigation is prohibited between 10a.m. and 6p.m. daily to reduce evaporativ e losses. During the summer irrigation season, the City institutes circle, square, diamond watering days. The next section presents a cost/benefit analysis of ASR at the Brighton case study site. Case Study Benefit/Cost Analysis Table 9 Benefit/Cost Analysis for ASR Project at Brighton, Colorado Design: 100 Acre feet ASR Vessel located near Brighton, Colorado Present Value Costs: Slurry Wall Construction $4,000,000 Land Acquisition 5 acres @ $20,000/acre $100,000 Dispersion Piping Installati on $20,000 Pump Installation 4 pumps @ $35,000/pump $140,000 Emergency Spillway Installation $50,000 Electrical Service $10,000 Diversion Structure $50,000 Pre treatment $25,000 _________________________________________________________ TOTAL Present Value Costs $4,400,000 Annual Costs, assuming a 10 year period at 6%. Present Worth factor = P/A = 7.36. Three options include:

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110 (1) Municipal raw water charges per acre feet at $1, 000/acre feet, (2) Augmentation Charges at $3,000 per acre feet for oil/gas fracking operations, and (3) Augmentation Charges at $350/acre feet, which is the fee the City of Brighton currently pays. Option 1: Present Worth benefit = ($1,000/acre feet) X ( 10) X (100 acre feet) = $1,000,000 Present Worth benefit = 7.36 X $1,000,000 = $7,360,000 Benefit/Cost = $7,360,000/$4,400,000 = 1.67* Option 2: Present Worth benefit = ($3,500/acre feet) X (10) X (100 acre feet) = $3,000,000 Present Worth bene fit = 7.36 X $3,000,000 = $22,080,000 Benefit/Cost = $22,080,000/$4,400,000 = 5.01* Option 3: Present Worth benefit = ($350/acre feet) X (10) X (100 acre feet) = $350,000 Present Worth benefit = 7.36 X $350,000 = $2,576,000 Benefit/Cost = $2,576,0 00/$4,400,000 = 0.6* Note: These values assume one 100 acre feet fill and one 100 acre feet complete discharge per year. To supplement the analysis above, the following section presents a construction cost comparison between constructing above ground reservoirs in comparison to below ground ASR storage vessels.

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111 Construction Cost for Above Ground Reservoir s Construction costs were obtained from the Colorado Division of Water Resources Dam Safety Branch in 2014. However, due to national security reasons, the names and locations of the newly constructed dams are not presented in this dissertation. Four dams of similar storage capacity sel ected from a list of recently constructed storage vessels are presented in Table XXX. Table 10 Surface Reservoir Construction Costs (Present Value) Construction Cost Acre feet Stored Dam Height (feet) $ 3,863,055 124 45 $ 7,958,823 101 88 $ 1,640,000 106 19 $ 4,095,176 126 46 $ 17,557,054 457 The average cost for the above structures is $ 17,557,054 /457 acre feet or $ 38,420 /acre feet. Construction Cost for ASR Water Storage Vessels In the previous benefit/cost analysis section, the cost developed for the City of Brighton Case Study ASR site was $4,400,000 for a 100 acre feet vessel, or $4,400/acre feet. This value is based upon the conditions at Brighton and could change depending o n site location. The largest cost component of ASR vessels is the slurry wall and the current price is approximately $5.50/face feet of wall, assuming a 30 feet to 40 feet wall height.

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112 Cost Comparison between Surface Reservoir and ASR Vessels In both the previous cost analyses, the cost of the land is excluded. The Brighton site had adjacent roads, electrical service lines, and ease of access and egress. Therefore, for a site that is not close to a municipality, construction costs would reasonably i ncrease. For planning purposes, a figure for an ASR vessel in the South Platte River basin, is estimated at $5,000/acre feet stored as compared to a new surface reservoir of approximately the same stored volume, of $ 38,420 /acre feet, both figures excludin g cost of land acquisition. Legally Available Raw Water Analysis For surface water diversions, Colorado water law establishes a date of priority decreed by the water court and administered by Colorado Division of Water Resources personnel, most likely a water commissioner. The dates of priority, with the most senior being first, are typically listed on a tabulation of water rights that the water commissioner references when establishing who on a stretch of stream or river, is permitted to divert and by how much. The South Platte river is over appropriated, meaning there is insufficient water to satisfy all decreed surface water rights. A new water storage structure to be able to divert legally, must first secure a court decree with a priority date. The ASR vessel at Brighton would be granted a junior priority date, meaning more senior water rights would be able to divert their decreed amounts ahead of the Brighton ASR. Therefore, an analysis of the nature of the flow in the river at Brighton is req uired to access when and if the vessel can fill.

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113 Classifications of Water Flowing Past the City of Brighton on the South Platte River occur after a large rainfall/runoff ev ent or snowmelt runoff event in the spring, at the same time the balance of decreed water rights are diverting their full entitlements without the most junior decree d priority. Figure 25 River Calls Affecting District 2 Location of ASR Case Study Figure 25 contains the number of calls affecting Water District 2, where the Brighton ASR site is located. However, the information not illustrated is the specific pe riods of no call on the river. This information would be useful in the design hydraulics of the ASR vessel. The figure illustrates the number of days of call during both the irrigation season and non irrigation season. For those years where the total nu mber of

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114 example, for the years 2003 and 2004, which was classified as a drought period, there To address the lack of specificity in Figure 25 concerning the specific time periods of no call, an analysis was performed to determine based upon 10 years of flow site and therefore available for diversion, even by the most junior water right priority. The analysis performed included the following scenarios: (1) A below average or dry runoff year, (2) A wet runoff year, and (3) An average runoff year. The results are as follows: Free River Analysis Results for P er iods at Brighton between 2005 and 2014 (1) Water Year 2005, a below average year, had periods of free river (No Call): June 4 at 8 am to June 22 at 8 am. The rest of the year was under a Call. (2) Water Year 2007, a wet year (Rain), had periods of No Call: Dec ember 25 8:00 am to Jan uary 2 8:00 am Jan uary 18 8:00 am to Jan uary 27 8:00 am Feb ruary 5 8:00 am to Feb ruary 12 8:00 am April 25 8:00 am to June 12 8:00 am (3) Water Year 2010, an average year, had periods of free river (No Call): Nov ember 1 to Feb ruary 11 at 8:00 am April 22 8:00 am to June 26 at 8:00 am Aug ust 10 at 8:00 am to Aug ust 11 at 8:00 am (4) Water Year 2011, an above average year, had periods of free river (No Call):

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115 Jan. 2 at 12:00 to March 16 at 8:00 May 12 at 12:00 to M ay 15 at 8:00 May 19 at 8:00 to July 26 at 8:00 Sept ember 19 at 8:00 to Oct ober 31 (5) Water Year 2012, another below average year, had periods of no call: Nov ember 1 to March 23 at 8:00 am, the rest of the year was under Call. Conclusion South Platt e River at Brighton The availability of free river, even during periods of below average runoff years, would be sufficient to provide ASR filling flows for at least a period of 10 continuous days, at the Brighton, Colorado ASR case study site. Therefore, during average years and wet years, the frequency of availability increases accordingly. Fully Reusable Effluent Water Available at the Brighton ASR Site Several Denver metropolitan municipal water suppliers derive portions of their raw water supply from non tributary sou rces, including trans basin diversions from the west slope of Colorado or from non tributary wells located within municipal boundaries. At the Brighton case study ASR site, the following water providers have fully reusable effluent flow that passes the s ite: Denver, Westminster, Arvada, Aurora, Brighton, Ft. Lupton, and Thornton. The Cities of Broomfield and Northglenn discharge their reusable effluent into Big Dry Creek, which enters the South Platte River downstream of Brighton; however, this water cou ld be exchanged up to the Brighton ASR site to fill the vessel. The Colorado Division of Water Resources Division 1 office (located in Greeley), which is responsible for the administration of surface and groundwater in the South Platte River and its tri butaries, maintains an accounting of reusable effluent flows as submitted

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116 by the individual municipal water providers. The monthly available fully reusable excess effluent flow that is available, assuming permission from the municipality is granted, to st ore in the Brighton ASR vessel) is found in Table 11 Table 11 Reusable Effluent at Brighton Monthly Excess Total for Water Year 2014 Nov Dec Jan Feb Mar Apr May Jun e July Aug Sept Oct 4511 5114 4937 4625 5037 4221 4653 4867 307 4 4057 4708 4703 Den@Metro 22 31 41 36 66 102 160 161 177 166 146 113 Westy@Metro 0 0 0 0 0 134 47 149 101 135 18 0 Arvada 226 180 165 159 281 519 626 681 496 333 519 497 Aurora 194 233 222 193 200 161 160 261 158 166 206 162 Brighton 14 70 52 11 12 8 18 31 16 38 60 62 Ft. Lupton 29 21 94 87 140 60 79 117 113 95 143 156 Broomfield@ Big Dry 225 154 151 136 136 214 309 297 294 255 119 170 Westy@BigDry 8 1 0 3 5 4 4 2 12 11 0 0 NGlenn@BD 565 841 853 776 955 862 638 663 618 796 943 939 Thornton 5794 6645 6515 6026 6832 6285 6694 7229 5059 6052 6862 6802 Total(cfs days) 30 31 31 28 31 30 31 30 31 31 30 31 Days/month 193 214 210 215 220 210 216 241 163 195 229 219 cfs/day 386 428 420 430 440 420 432 482 326 390 458 438 Total Acre Feet/month available at Brighton for ASR Conclusion Fully Reusable Effluent Water Available at the Brighton ASR Site There is sufficient excess legally divertible fully reusable effluent water at the Brighton ASR site to fill and refill the vessel every month of the year based on the data for water year 2014. However, permission must first be granted by the municipal en tity to store their water in the vessel. The filling constraint is the maximum infiltration rate permitted by the in situ soils on site since the vessel is below ground and the intent is no evaporation component associated with any of the inflow quantity. This aspect of the case study is examined via a 3 dimentional groundwater model, MODFLOW, and the results are found later in this chapter.

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117 The criteria for site selection was based on available alluvium and the distance between the site and the Denve were occasion to pump the alluvial stored water back to the metro area for subsequent use, a shorter distance would save total project costs by shortening the pipe installation requirements. Therefore, the area sel ected for study was between the northeast portion of the metro area, downstream of the Denver Metropolitan Wastewater Treatment Plant and Brighton, Colorado, which is about 14 miles downstream on the South Platte River. An aerial photograph of the area between Denver and Brighton is illustrated in Figure 2 6 and the site chosen is located west of Brighton, south of Highway 7, and east of the South Platte River.

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118 Figure 2 6 The South Platte River between Northeast Denver and Brighton (Picture from Google Earth)

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119 Figure 2 7 Case Study Site located east of the South Platte River South of Highway 7 the area resembles an oval (Photo from Google Earth) Figures 2 8 and Figur e 2 9 depict the selected case study site. Figure 2 8 Case Study Site looking South Southeast (photo by author) Note: Horizontal Wire at mid point of photograph

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120 Figure 2 9 Case Study Site near the South Platte River (Photo taken 1/18/2015 at 11:30am by author ) Once the case study site was selected, detailed soils information was required. Figure 30 is an aerial from the Web Soil Survey of the Natural Resources Conservation Figure 30 Aerial of the Case Study Site with Soil Contours (USDA)

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121 The Soil Survey of Adams County, Colorado (United States Department of Agriculture, Soil Conservation Service, Issued October 1974) contained soil descriptions for the contours located on the aerial photograph above. The three types of soils in and near the case study site are sandy alluvial land (Sm), loamy alluvial land, gravelly substratum (Lv), and finally, wet alluvial land (Wt). All three soil types are indicative of gravelly soils which offers this particular site as a g ood alluvial storage and recovery case study. Contained in Table 3 of the CWCB 200 7 alluvial study are values of hydraulic conductivity (ft/day), transmissivity (ft 2 /day), and specific yield. The median values of these three soil characteristics, b ased on 506 samples, are 425.4 ft/day, 16,388 ft 2 /day, and 0.1730 respectively Subsequent to a site visit, the proposed ASR storage vessel dimensions were developed. The ASR vessel is 600 feet wide, 1,200 feet long, 30 feet assumed alluvial depth, w ith 0.2 porosity also assumed. These dimensions equate to a 100 acre feet estimated storage volume. The values of hydraulic conductivity and transmissivity from the CWCB 2007 study translate to an alluvial depth of 38 feet, however, for the purposes of t his case study, a more conservative figure of 30 feet of alluvium is used. The ASR vessel will be enclosed by an impermeable slurry wall, keyed into bedrock. MODFLOW Groundwater Model A groundwater simulation model determined the engineering feasibility of the Brighton, Colorado ASR site and McDonald Harbaugh developed the 3 dimensional finite difference groundwater model. The commercially available model, with a pre and post processor, is the Aquaveo GMS Community Free, version 9.1, which contains 3

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122 dim ensional grid tools, animation tools, and the MODFLOW model and interface. The model assumes an alluvial depth of 31 feet, with starting head at one foot (to eliminate model convergence issues), a width of 600 feet and length of 1200 feet. With an assu med porosity value of 0.2, the potential volume stored is 100 acre feet. The following modeling parameters apply: MODFLOW Version 2000 Parallel Transient simulations Forward Run Option Stress Periods 0 through 30 days at 1 day intervals; 50 times steps; 1.05 multiplier MODFLOW Package LPF (Layer Property Flow) Solver PCG2 Well Package option used Units l FT; T Days; F pounds IBOUND Array 1 Hydraulic Conductivity 425 feet/day Specific Yield 0.173 Specific Storage 0.07 Starting Head Elevation 1 feet for fill simulation; 30 feet for pump out simulation MODFLOW Model Scenarios The following scenarios were modeled:

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123 1. With various diversion rates, how many days are required to fill the 100 acre feet vessel ? 2. In order to prevent surface ponding, what is the maximum instantaneous fill rate? 3. Vary the values of K (hydraulic conductivity) to simulate soil variability and evaluate. 4. What is the optimal design configuration for the corrugated dispersion piping? 5. Can flows and divert this flow into the ASR vessel? 6. Develop a pump out configuration with given flow rates and evaluate. Transient groundwater simulations modeled the ASR vessel si nce the inflow versus fill volume is time dependent. Simulation duration of 30 days was modeled with 50 time steps per day. The large number of time steps assisted in the model converging to a solution. Recharge wells simulate diverted river water and s ubsequent dispersion in the alluvial vessel via perforated pipe. Pumping wells simulate the time required to drain a full ASR vessel at given discharge rate(s). The following section contains the model results. Individual model run graphical output is contained in Appendix G. Model Results 1. Input Data: Slide 20.gpr Question: How many days are required to fill the reservoir at a given diversion fill rate, while not ponding water on the ground surface? K = 425 feet/day; Time of simulation = 30 days;

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124 Stream Diversion Rate = 2 cubic feet per second (cfs) Results: 20.49 days required to fill the reservoir at H = 31 feet. Refer to Appendix G Figure 31 for graphical output. Discussion: The assumed diversion rate of 2 cfs is the lower end value input and a total of about 20.49 days is required to fill the ASR vessel. This was the first of many incremental model runs made by increasing the assumed diversion rate. If a value was too high, the model predicted ponding on the ground surfac e by illustrating on graphical output; the head elevation was higher than the ground surface and the cell graphical output would show a blue triangle, which illustrates a saturated cell. The model configuration, as shown in the graphical outpu t, shows a dispersion pipe located in the mid section of the vessel, and consists of 10 cells with each cell injecting 17,280 cubic feet/day. 2. Input Data: Slide 30.gpr Question: What is the maximum fill rate permissible without ponding water on t he ground surface? K= 425 feet/day Time of Simulation: 30 days Stream Diversion Rate = 5 cfs Results: Between 7.83 days and 8.37 days required to saturate the cell and result in ponding at the ground surface. Each of the 10 cells injected 43,200 cu bic feet/day into the ASR vessel. Using a value of 8 days and a diversion rate

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125 of 5 cfs, or 10 acre feet per day, prior to surface ponding, about 80 acre feet of diverted surface water could be stored. 3. Input Data: Slide 40.gpr Question: Would acceptable results? K = 425 feet/day Time of Simulation: 30 days Stream Diversion Rate = 7 cfs Results: This model assumes 4 cells or a reverse spillway of 480 feet in length and the assu med vessel injection rate of 7 cfs. At .974 days, one cell is saturated and the vessel stores 14 acre feet of diverted surface water. Therefore, make another model run with a 5 cfs assumed diversion rate with 6 cells or a spillway length of 720 feet. 4. Input Data: Slide 50.gpr Question: Assuming a reverse spillway configuration, with 6 cells and a 5 cfs diversion rate, how many days will the vessel fill before saturating the ground surface? K= 425 feet/day Time of S imulation: 30 days Stream Diversion Rate = 5 cfs Results: The ground surface saturates between 5.11 days and 5.51 days and the vessel stores approximately 51 acre feet of diverted flood peak flows. 5. Input Data: Slide 60.gpr

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126 Question: Model both the reverse spillway and injection wells and determine which controls as to saturating the ground surface. K= 425 feet/day Time of Simulation: 30 days Stream Diversion Rate = 5 cfs and Reverse Spillway inflow = 5 cfs Results: Between 2.53 da ys and 2.8 days, the ground surface saturates in the area near the reverse spillway. The amount of total water inflow stored in the ASR vessel is 50.6 acre feet. 6. Input Data: Slide 80.gpr Question: What is the optimum pump layout schematic and pumpin g rate? Model 4 pumps, in a rectangular layout, at 5 cfs total. K = 425 feet/day Time of Simulation: 30 days Pump out rate: 5 cfs total Results: Pump out 50 acre feet, however, dry cell develops between 4.37 days and 4.73 days. 7. Input Data: Slide 90.gpr Question: What is time required to pump out, using a flow of 1 cfs total for all four pumps? K = 425 feet/day Time of Simulation: 50 days Pump out rate:1 cfs total

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127 Results: Between 34.15 and 36.1 days, before a dry cell develops. The amount pumped is approximately 70 acre feet. 8. Input Data: Slide 1 15 .gpr Question: What is an optimum configuration for the corrugated inflow dispersion piping? K = 425 feet/day Time of Simulation: 30 days Results: corrugated pipe dispersion piping layout. This configuration insures a uniform depth of diverted inflow surface water throughout the boundary of the ASR vessel. In addition, this pipe layout, assuming an upper and lower layer of piping, will ensure when the pumps are operating to drain the vessel and the pumps are hydraulically connected to the lower level of piping, there will be no dry cells develop when pumping operations occur. 9. Input Data: Slide 1 6 1.gpr Question: Develop method of modeling the optimum configuration for the corrugated inflow dispersion piping to illustrate that dry cells will not develop when pumping. K = 425 feet/day Time of Simulation: 30 days Results: The bottom figure 8 piping configuration was modeled by assuming the number of pumps were increased from 4 to 6. By using this methodology, a slower pumping rate can be used to decre a se the slope of the draw down

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128 curve. By using this modeling met hod to evacuate the ASR vessel, the possibility of a dry cell is decreased Summary of MODFLOW Model Simulations 10,000,000 acre feet of potential storage in the alluvium of the South Platte River basin, to the preliminary design and evaluation phase. By incorporating available data relative to transmissivity, specific storage, specific yield, hydraulic conductivity, and assumed diversion rates from the South Platte River ne ar Brighton, Colorado, it was determined ASR is a viable option for storing surface water underground. Because of the numerous MODFLOW simulations, the literature review of existing ASR projects in the US and worldwide, and the legal availability of sur face water in the South Platte River at the Brighton, Colorado ASR case study site, the following conclusions apply: 1. ASR is a viable water storage option in the South Platte River basin in Colorado. 2. Pretreatment of the diverted South Platte River surface w ater is required (due to location near a major wastewater treatment plant). 3. 4. There is a maximum inflow rate. 5. There is an optimum pipe configuration in the shape of the figure 8. 6. There should be 2 par allel layers of corrugated piping in the ASR vessel. This methodology negates the possibility of the evacuation pumps developing cavitation characteristics.

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129 7. From the Denver metro area to the Colorado/Nebraska state line, there is sufficient alluvial mate rial adjacent to the South Platte River, to consider Alluvial Storage and Recovery vessels as a water storage option.

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130 CHAPTER V CONCLUSIONS AND RECOMMENDATIONS As stated previously, issues involving the private property status of water rights and the Public Trust Doctrine; state agencies caught between science, uneven legislation and the water court process; the conflict between additional water storage structure s and threatened and endangered plant and animal species, all shape the future of water resources engineering and public policy in Colorado. This dissertation addressed these issues by reviewing the literature, current practice, developed an engineered al luvial water storage design for the South Platte River basin in Colorado as a method of dealing with climate change, and offers policy suggestions for expanded CWCB responsibilities in future management strategies. resources is the purview of the Colorado Division of Water Resources and the seven Division Offices located in each of the major stream systems. The water commissioners are the day to day administrators that use the tabulation of water rights for their a ssigned areas, to assign who is in priority on any given day. As water court generated decrees become more complicated, frequent, and deal with smaller quantities of water, the job s of all the water administrators are becoming increasingly complicated. The Colorado legislature, over time, has generated statutes that give specific operational structure and control to the State and Division Engineers. Without these clima te change and possible adoption of a Public Trust Doctrine in Colorado via constitutional amendment, would be problematic, if not impractical. Clear boundaries of

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131 respecte d and maintained. The Colorado judiciary, via the water courts and the water administrative agency, the Colorado Division of Water Resources are perhaps the two agencies of Colorado state government best situated to work in tandem and most efficiently, for the betterment of T he Colorado Water Conservation Board is also well positioned to be an equal partner in the water court/state engineer water administration and management team. There is the potential overarching legislated power that the federal government to this power will fall upon, in large part, the ability of administrative agencies worki ng in concert with the Colorado judiciary. The district water courts and the Division Engineers are the key operators in this instance. Case law from the many cases previously cited, via the judicial opinions of various circuit courts, shows the interpre tations of national laws are not consistent. For Colorado administrative agencies, such as the Division of Water Resources or the Water Conservation Board, this is not a welcoming trend. Colorado Governor Hickenlooper signed a directive for the Colorado Water Conservation Board to develop a draft statewide water plan by December 201 4 and a final report by December 2105 I f Colorado continues to rely on the state Supreme Court decision d ictat ing the property characteristic of use of water by the public and rely strictly on the covenants of the prior appropriation doctrine, the results may conflict if Colorado voters vote for the Public Trust Doctrine.

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132 With climate change and its predicted reductions in stream flow and increased temperatures, and the F ederal g and Water Quality Act, Colorado should react proactively and modify what is necessary to enable reasonable and prudent management of its water resources. As the stewards of its own resource, C olorado water managers and administrators cannot afford to do less. The Colorado Water Conservation Board is the state agency that should be legislatively assigned (in consultation with the Colorado Division of Water Resources) the overall duties and re surface and groundwater) and have the legislated authority to render decisions concerning use, place of use, places of storage, during times of declared drought In addition to the water courts being consulted, the Colorado Division of Water Resources should provide input as to the viability of proposed decision s of the CWCB could be administered. CWCB should also have sufficient funds to buy, trade, lease water rights from agreeable decreed wat er right holders. In Colorado, the state judiciary adjudicates water rights and the Colorado Water Conservation Board generates state water policy and doctrine. In New Mexico, however, the State Engineer assumes responsibilities for both. Whether in New Mexico or Colorado, or any western state under the prior appropriation doctrine, water management is a complex science and requires time for adequate study and analysis Water managers are constantly under attack from environmental activists and are under ever increasing pressures from external forces including federal environmental mandates, population increase, business pressures, and most recently, climate change. Both State Engineers have various and difficult

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133 responsibilities, which ar e critical for maintaining qualit y of life that are key attributes to both states. declaration of 10,000,000 acre feet of potential alluvial storage, to the preliminary design and e valuation phase. By incorporating available data relative to transmissivity, specific storage, specific yield, hydraulic conductivity, and assumed diversion rates from the South Platte River near Brighton, Colorado, it was determined ASR is a viable optio n for storing surface water underground. The inclusion of a slurry wall as part of the vessel design, will offer segregation of the stored water from the adjacent tributary groundwater. This is necessary to satisfy Colorado water law. Because of the n umerous MODFLOW simulations, the literature review of existing ASR projects in the US and worldwide, and the legal availability of surface water in the South Platte River at the Brighton, Colorado ASR case study site, the following conclusions apply: 1. ASR i s a viable water storage option in the South Platte River basin in Colorado. 2. Pretreatment of the diverted South Platte River surface water is required (due to location near a major wastewater treatment plant). 3. lood flows. 4. There is a maximum inflow rate. 5. There is an optimum pipe configuration in the shape of the figure 8. 6. There should be 2 parallel layers of corrugated piping in the ASR vessel. This methodology negates the possibility of the evacuation pumps dev eloping cavitation characteristics.

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134 7. From the Denver metro area to the Colorado/Nebraska state line, there is sufficient alluvial material adjacent to the South Platte River, to consider Alluvial Storage and Recovery vessels as a water storage option. I r espectively submit that the issues and ideas focused upon in this dissertation will assist Colorado to satisfy the legal allocation and apportionment of our most precious resource surface water and groundwater

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135 REFERENCES American Board of Engineering and Technology (ABET), Criteria for Accrediting Engineering Programs, Program Criteria for Civil Engi n eering, 2012. AncestryLibrary.com Colorado State Census, 1885 Located at Denver Public Lib rary, Western History & Genealo gy Department, 5 th floor. Bartles, Lynn, The Denver Post February 13, 2014, P. 84 Bedient, Philip B., Civil and Environmental Engineering, Rice University Lecture on (Permission granted from Dr. Bedient to use and reference the lecture slides) Brand, Cortney C., Southwest Hydrology May/June 2008 (Permission granted by University of Arizona, Southwest Hydrology no longer in print) Blumm, Michael C., The Public Trust Doctrine and Private Property: The Accommodation Principle Pace Environmental Law Review, Article 3, Volume 27, Issue 3 Summer 2010, page 666 667) Brown, Christopher J. Lessons Learned from a Review of 50 ASR projects from the United Sta tes, England, Australia, India, and Africa 2006, Paper 68 Conference Proceedings Southern Illinois University Carbondale, http://opensiuc.lib.siu.edu/ucowrconfs_2006/68 ) Burrows and Garvey, in A Brief Overview of Rulemaking and Judicial Review Jan. 2011. Carson Truckee Water Conservancy Dist. et al v. William P. Clark, et al, 741 F.2d 257 (9 th Cir. 1984) California Division of Water Resources, 2009 Water Plan Volume 2, Chapter 6 System Reoperation Cassuto, David N., and Reed, Steven Matthew, Water Law and the Endangered Species Act July 28, 2010. Pace University School of Law Charaklis, Gregory W., Water Resource Engineering, Economics and Public Policy The Bridge Linking Engineering and Society, National Academy of Engineering of the National Academies, Vol. 33, No. 4. Winter 2003, pages 4 8. Chevron v. NRDC 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694, 21 ERC 1049 (1984) City of Brighton, Colorado web page 2015. http://www.city data.com/city/Brighton Colorado.html

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136 City of Long Beach Water Department web page 12/16/14, http://www.lbwater.org/long beach conjunctive use projects Colorado Revised Statutes, Title 37 38 Water and Irrigation Real and Personal (2011) Colorado Water Conservation Board, SB06 193 Underground Water Storage Study, March 1, 2007 website ( http://cwcb.state.co.us/environment/instream flow program/Pages/main.aspx Dated May 31, 2013 Czarneck, Hays, McKee, USGS report The Mississippi River Valley Alluvial Aquifer in Arkansas: A Sustainable Water Resources? Davis v. Gale, 32 Cal. 27 DeGroen, Cindy. Population Forecasts, Colorado Department of Local Affairs, Nov. 2012 Denver Post, February 13, 2014 p. 8A Department of Water and Power of the City of Los Angeles et al., Real Parties in Interest, 33 Cal. 3d 419 (1983) 658 P. 2d 709 189 Cal. Rptr. 346 (Mono Lake Decision) Eleventh Biennial Report of the State Engineer to the Governor of Colorado for the Years 1901and 1902. Denver: The Smith Brooks Printing Co., 1902, 233 th Cir. 1995) Eighth Biennial Report of the State Engineer to the Governor of Colorado for the Years 1895 and 1896. Denver: The Smith Brooks Printing Co., 1897, 20 Farber and Findley. Environmental Law in a nut shell 2010, 8 th Edition. St. Paul, Mn. West Fifth Biennial Report of the State Engineer to the Governor of Colorado. Denver: The Collier and Cl eaveland Lithographing Co., 1891, 15 17 Subsurface Dams to Augment Groundwater Storage in Basement Terrain for Human Subsistence in Brazil and Kenya December 2004 Fourth Biennial Report of the State Engineer to the Governor of Colorado. Denver: The Collier and Cleaveland Lithographing Co., 1889, 395 404 Fuller et al., v. Swan River Placer Mining Company (Supreme Court of Colorado 12 Colo. 12; 19P. 836; 1888 Colo.)

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137 Getches, David H., ( Water Law in a Nutshell West Publishing Co., St. Paul, MN 2009 pages 243 244) Glossary of Water Resources terms, from GUIDE TO COLORADO WELL PERMITS, WATER RIGHTS, AND WATER ADMINISTRATION January 2008 Hanson and Nilsson (1986), Ground water dams for rural water supplies in developing countries Groundwater, 24(4), 497 506) 1986 Hobbs, Hon. Justice Greg. University of Denver Water Law Review, Volume 3 Issue 1 Fall 1999 Hobbs, Hon. Justice Greg of the Colorado Supreme Court, Presentation to the Geological Society of America, October 28 31, 2007, Denver, Colorado. ( Reprinted portions with permission of author ) History Learning Site ( http://www.historylearningsite.co.uk/fed.htm ) May 2013 http://www.water.ca.gov/ California Division of Water Resources website http://www.ose.state.nm.us/ New Mexico State Engineers Office website http://www.wyo.gov/seo/ Wyoming State Engineers office website Hyman, Barry. Public Policy and Engineering Design Education International Jo urnal of Engineering Education, Vol. 19, No. 1, pp 110 117, 2003. Ingebritsen, S.E., and Jones, David R., USGS Menlo Park, California City of Santa Clara Ishida, Tsuchihard, Yoshimoto, and Imaizumi, Sustainable Use of Groundwater with Underground Dams JARQ 45 (1), 51 61 (2011) Jacobs, James J., Tyrell, Patrick, and Brosz, Donald J. T ., Wyoming Water Law a summary Junkans v. Bergin, 67 Cal. 267 270 Klamath Water Users Protective Ass., et al v. Roger Patterson, et al, 204 F 3d 1206 (9 th Cir. 1999) Kidd v. Laird, 15 Cal. 27 Lazarus, Richard, Changing Conceptions of Property and Sovereignty in Natural Resources Law: Questioning the Public Trust Doctrine Georgetown University Law Center, 1986, page 715 716)

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138 Leonhardt, Stephen H. and Jessica J. Spuhler ( The Public Trust Doctrine: What it is, Where it came from, and Why Colorado does not and Should not have One ) pages 48 to 94, University of Denver Water Law Review, Volume 16, Issue 1, October 1, 2012 Limerick, Patricia Nelson, A di tch in Time, The City, the West, and Water Fulcrum 2012 Linsley, Franzini, Freyberg, and Tchobanlglous, Water Resources Engineering Fourth Edition, McGraw Hill, 1992 p. 324 A Critical analysis 1969 Maeris v. Bicknell, 7 Cal. 262 264 Aquifer Storage and Recovery Future Directions for South Australia Dr. McKinney on 12/04/2014 via email) Mining Co. v. Morgan, 19 Cal. 609 616 Murphy, Patrick, "THE HYDRAULIC PERFORMAN CE OF PERFORATED PIPE UNDER DRAINS SURROUNDED BY LOOSE AGGREGATE" (2013). All Theses. Paper 1639 National Audubon Society V. Super Court, 22 III. 33 Cal. 3d 419, 189 Cal. Rptr. 346, 658 P. 2d 709, 21 ERC 1490 (1983) National Conference of State Legislatures (NCSL), ( http://www.ncsl.org/legislatures elections/legislatures/separation of powers an o verview.aspx. May 2013 Natural Resources Defense Council, et al v. David Houston, et al, 146 F.3d 1118 (9 th Cir. 1998) Saturated H ydraulic Conductivity: Water Movement Concepts and Class History http://www.nrcs.usda.gov/wps/portal/nrcs/detail/tx/soils/?cid=nrcs142p2_053573 Ninth Biennial Report of the State Engineer to the governor of Colorado for the Years 1897 and 1898. Denver: The Smith Brooks Printing Co., 1899, 19. Onde r, H. and Yilmaz, M. Underground Dams A Tool of Sustainable Development and Management of Groundwater Resources European Water 11/12: 35 45, (2005) Owen, Dave. The Mono Lake Case, the Public Trust Doctrine, and the Administrative State, copyright 20 12. Referenced work with permission of author.

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139 Proceedings of the Constitutional Convention Held in Denver, Dec 20, 1875 (Denver, Colorado The Smith Brooks Press, State Printers, 11897) Report of the State Engineer Colorado Denver: Denver Tribune Publi shing Company, 1882, 9 Report of the State Engineer to the Governor of Colorado. Denver: Collier and Cleaveland Lith. Co., 1885, 61 68 Richardson, Jesse J. Jr. and Tiffany Dowelli, Summary of Bounds v. New Mexico 2013 ( http://ucowr.org/call for papers/summary of bounds v new mexico new mexico supreme court ) Riverside Irrigation District v. Andrews, 758 F.2d 508(1985) Sax, Joe, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention Michigan Law Review Sierra Club v. City of San Antonio, 112 F.3d 789 (5 th Cir. 1997) Underground dams the Simpson v Bijou Irrigation Co ., 69 P. 3d 50 (Colo. 2003) Sixth Biennial Report of the State Engineer for the Governor of Colorado for the years 1891 and 1892. Denver: The Smith Brooks Print ing Co., 1892, 361 407 Sixteenth Biennial Report of the State Engineer to the governor of Colorado for the Years 1911 12. Denver: The Smith Brooks Printing Co., State Printers, 1913, 90 107 Stenzel, Richard and Tom Cech, self published, 2013 Strickler v. City of Colorado Springs (Supreme Court of Colorado, 16 Colo. 61; 26P. 313; 1891 Colo.) Tenth Biennial Report of the State Engineer to the governor of Colordo for the years 1899 and 1900. Denver: The Smith Brooks Printing Co., 1901, 18 Thirteenth Biennial Report of the State Engineer to the Governor of Colorado for the Years 1905 1906. Denver: The Smith Brooks Printing Co., 1907, 15 16 Tulare Lake Basin Water Storage District v. United States, 49 Fed. CI. 313 (2001) Twenty Third Biennial Report of the State Engineer to the Governor of Colorado for the Years 1925 1926 Denver: Bradford Robinson Printing Co., 1927, 27 United States v. Glenn Colusa Irrigation District, 788 F. Supp. 1126(1992)

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140 United States Environment al Protection Agency website, http://www2.epa.gov/aboutepa/epa region 8 mountains and plains April 16, 2013 United States Environmental Protection Agency, http://water.epa.gov/typ/groundwater/uic/aquiferrecharge.cfm [1/22/2015 US Department of the Interior 2011 Climate Change Study, ( http://www.doi.gov/whatwedo/climate/index.cfm ) ( http://www.usbr.gov/climate/maps.html ) Utah Weber Basin Aquifer Storage and Recharge Project ( http://www.weberbasin.com/index.php/environmental/mitigation projects/124(11/30/2014) Walston, R., (The Public Trust Doctrine in the Water Rights Context: The Wrong Environmental Remedy, Santa Clara Law Review, Article 3, Vol 22, Number 1, Jan 1, 1982) Wolfe, Dick (2103). Denver, Colorado February 1, 2013 Wolfe, Dick. Interview with th e Colorado State Engineer 2/15/ 2014

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141 APPENDIX A GLOSSARY W ATER L AW W ATER A DMINISTRATI O N AND L EGAL T ERMS Abandonment of water right : the termination of a water right in whole or in part, resulting from the intent of the owner to permanently discontinue its use. A conditional water right may also be terminated by failure on the part of the owner to develop it with reasonable diligence until absolute, or to make filings to the water court every six years showing due diligence has been made towards perfecting the water right. Absolute water right: a water right that has been put to a beneficial use. See definition for conditional water right. Acre foot : the volume of water equivalent to covering one acre of land to a depth of one foot; equal to 43,560 cubic feet or 325,851 gallons. Adjudication: the judicial process through which the existence of a water right is confirmed by decree of the water court. Appropriati on: the right to take a certain portion of the waters of the state to be put to beneficial use. The specific quantity and rate of flow may be confirmed by a water court decree. Aquifer: a formation, group of formations or part of a formation containing su fficient saturated permeable (able to pass through) material that could yield a sufficient quantity of water that may be extracted and put to beneficial use. Augmentation Plan: a way for junior appropriators to obtain water supplies through terms and con ditions approved by a water court that protects senior water rights from the depletions caused by the new diversions. It typically will involve storing junior water

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142 when in priority and releasing that water when a call comes on, purchasing stored water to release when a river call comes on, or purchasing senior irrigation water rights and Augmentation water: water that is added, left, or replaced in a stream system to offset ou t of priority diversions. Beneficial use: the use of a reasonable amount of water necessary to accomplish the purpose of the appropriation without waste. Some common types of beneficial use are: domestic, household use, irrigation, municipal, wildlife, re creation, and mining. Call: a request by a water right appropriator that more junior water rights on the same drainage system curtail their diversions of water to the extent necessary, such that sufficient water is made available to satisfy the senior wate r right placing the call. Such calls are administered by the Division Engineer and staff for the division in which the call was placed. Change of water right: any change in any way that a water right is used. It can be changed in type, place or time of use, point of diversion, adding points of diversion etc. It is not considered a change in use if a farmer changes the type of crop grown or the type of irrigation method. Changes of water rights must be approved by the water co urt to assure that no injury occurs to other water rights. Conditional water right: a water right obtained through the water court where the water has not been placed to a beneficial use. It gives the holder of that right time to complete a project as lon g as they diligently pursue completion of the project. Every six years, the court reviews what progress has been made toward completion of the project. Once the

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143 right has been placed to beneficial use, the holder of the conditional right must then ask th e court to make it an absolute water right. See definition of Absolute water right. Consumptive use: the amount of water that is lost to the stream system, for example, through crop consumption or evaporation, when applying water to beneficial uses. Cubic feet per second: a rate of flow of water passing a given point each second of time, amounting to one cubic foot. This is equal to 7.48 gallons per second, 448.8 gallons per minute or approximately two acre feet per day. Decree: an official document iss ued by the water court including, but not limited to, the priority date, amount, use, and location of the water right. Depletion: the withdrawal of water from a surface or ground water stream or basin at a rate greater than the rate of replenishment. De pletion is determined for a system by subtracting system outflows from system inflows. Designated ground water: ground water that, in its natural course, is not available to or required for the fulfillment of decreed surface rights, or ground water in ar eas not adjacent to a continuously flowing natural stream, wherein ground water withdrawals have constituted the principal water usage for a least 15 years preceding the date of the first hearing on the proposed designation of the basin, and which is withi n the geographic boundaries of a designated ground water basin. those areas of the state established by the Ground Water Commission in accordance with Section 37 90 106, CRS (Colorado Revised Statutes ). The designated basins are located in the Front Range and in eastern Colorado. There are currently eight designated basins. Diversion: to divert and control water from its natural course by means of a structure.

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144 Division Engineer: principal water official in each of the seven water divisions. Exempt uses: any recognized uses that are not subject to administration under the priority system. Exempt well: a well allowed to be used for exempt uses. For further information, see Section s 37 92 602 and 37 90 105, CRS. Ground water: any water not visible on the surface of the ground under natural conditions. Ground Water Commission: a twelve member body created by the Legislature, nine of which are appointed by the Governor to carry out an d enforce the state statutes, rules and regulation, decisions, orders and policies of the Commission, dealing with designated ground water. Ground water management district: any district organized under Section 37 90 118 to 37 90 135, CRS, for the purpose of consulting with the Ground Water Commission on all designated ground water matters within a particular district. There are currently 13 districts. Irrigation year: the irrigation year for the purposes of recording annual diversions of water f or irrigation in Colorado begins November 1 and ends on October 31 of each year. Junior water right: a relative term describing a water right with a priority less than that Native waters: surface and und erground waters naturally occurring in a watershed. Non consumptive: uses that do not reduce the quantity of water available to the stream system.

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145 Non exempt uses: any recognized beneficial uses of water that are administered under the priority system. Fo r further information, see Sections 37 90 137 and 37 90 107, CRS. Non exempt well: a well allowed to be used for non exempt uses. Non native waters: waters imported or not originally hydrologically connected to a watershed or drainage basin physically or b y statute; non tributary ground water and transmountain water are non native. Nontributary ground water: ground water located outside the boundaries of any designated ground water basin, where the withdrawal of this ground water by a well will not, within 100 years, deplete the flow of a natural stream at an annual rate greater than one tenth of one percent of the annual rate of withdrawal. Not Nontributary ground water: ground water located within those portions of the Dawson, Denver, Arapahoe, and Laram ie Fox Hills aquifers that are outside of any designated ground water basin in existence on January 1, 1985, the withdrawal of which will, within 100 years, deplete the flow of a natural stream at an annual rate greater than one tenth of one percent of the annual rate of withdrawal. Over appropriated: a water rights term used to describe a surface water drainage system that has more decreed water rights claims on the system than can be satisfied by the physical supply of water available. Potability: a r eference to water that does not contain pollution, contamination, or infective agents, and is considered to be safe for human consumption.

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146 Priority: the right of a senior water rights holder to divert water before a junior water rights holder from a common source. Priority is based on both the appropriation date and adjudication date of a water right, as confirmed by the water court. Recharge area: reservoirs and ditches that are designated to replenish groundwater depletions, due to out of priority dive rsions, by artificially introducing water into the ground water aquifer. Resume: a monthly publication by the water court of a summary of water rights applications filed in the water court that month. River Basin: the land area and water catchment surrou nding a river from its headwaters to its mouth. River call: usually a written document filed with the Division Engineer stating that, as of a certain date and time, a water right holder is not receiving all of the water they are entitled to by decree, an d are requesting that the Division Engineer shut down all upstream water rights junior to them until their senior right is satisfied. Senior water right: a relative term describing a water right with a priority greater than common source of water. State Engineer: the Governor appointed chief state water official in charge of administering the waters of the state. Structure: any apparatus constructed to divert water, such as a headgate, pipe, or well. Transmountain diversions : water that is diverted from one watershed to another across the Continental Divide. Tributary water: water that is hydrologically connected to a natural stream system either by surface or underground flows.

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147 User supplied data: data or records of water us es provided by an owner/user that has not been verified by state officials. Water commissioner: state water official, appointed by the State Engineer and working under the direction of the Division Engineers, who performs the day to day administration of s urface and ground water in each water district. Water court: a district court that hears matters related to water. To obtain a judicially recognized water right, change a water right or obtain an augmentation plan, requesting persons or entities file appl ications with one of these courts and the court will issue a decree or order. Water districts: eighty geographical divisions of the state that were originally used for the granting of water rights. The districts are now largely used for administrative purposes. Water divisions: the seven geographical areas of the state of Colorado corresponding to the major natural surface water drainages. The seven divisions are: Division 1 South Platte River Basin; Division 2 Arkansas River Basin; Division 3 Rio Grande River Basin; Division 4 Gunnison River Basin; Division 5 Colorado River Basin; Division 6 Yampa/White River Basins; Division 7 San Juan/Dolores River Basins. Water right: a property right that is either conditional or absolute and conveys the right to use a particular amount of water, with a specified priority date as confirmed by the water court, or by the Ground Water Commission if within the designated ground water basins. Well: any structure or device used for the purpose, or wi th the effect, of obtaining ground water for beneficial use from an aquifer. Additionally, any test hole or other excavation

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148 that is drilled, cored, bored, washed, fractured, driven, dug, jetted, or otherwise, constructed, when the intended use of such ex cavation is for the location, monitoring, dewatering, observation, diversion, artificial recharge, or acquisition of ground water, or for conducting pumping equipment, or aquifer test. A Short Glossary of Legal Terms A more complete definition of these a nd other legal terms maybe found in Law Dictionary Amicus curiae A friend of the court. A by stander (usually an attorney) who volunteers information on a legal matter about which the judge may be doubtful or mistaken. Cusjus est solum To whoms oever the soil belongs, he owns also to the sky and to the Ejus est usque ad depths. Coelom et ad inferos Damnum absque Loss, hurt, or harm without injury in the legal sense. A loss which injuria does not give rise to an action for damages against the person causing it. De novo (trial) A new trial or retrial held in an appellate court in which the whole case is gone into as if no trial had previously been held. Estoppel or acceptance prevents him from alleging or pleading the truth. Ex cathedra From the chair. Originally applied to the decisions of the popes. Hence, having the weight of authority. Ex necessitate rei From the necessity or urgency of the thing, or case. Inchoate Applied to water rights; being partly but not fully in existence or operation. Inter alia Among other things. A term used in pleading where a whole list or arguments are not set forth at length.

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149 Laches An inequity founded on some change in the condition or relations of the property or parties. Undue delay in asserting a right or claiming a privilege. Prama facie On the face of it; a fact presumed to be true unless disproved by some evidence t o the contrary. Pro tanto To a certain extent. Publici juris Of public right. As applied to a right it means that it is open to or exercisable by all persons. Res judicata A matter adjudged. Rule that final judgement or decree on merits by a court of competent jurisdiction is conclusive or rights of parties in later suits on matters determined in the former suit. Sic utere tuo ut So use your property that you do not do alienum non laedus injury to another. Sine qua non Without which not. An indisp ensable requisite or condition.

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150 APPENDIX B STATUTORY AUTHORITY OF THE STATE ENGINEER COLORADO RIVISED STATUTES, TITLE 37 (2014) 1. §37 80 101, State Engineer, Governor Appointment and duties 2. Surface water administration and State Engineer authority § § 37 92 102, 301 3. Ground water administration § § 37 90 110, 111, 138, § § 37 90.5 102, § §37 92 102, 301, §37 92 4. Orders as to waste, diversions, distribution of water § §37 92 502, 503 5. Rulemaking a uthority § § 37 80 102(1)(g), 102(1)(k), §37 92 501 6. Fines, damages, enforcement and injunctions §§37 89 101, 103, § §37 92 503(6) (8) and §37 92 504 7. Reservoir administration §37 84 117 8. Compact administration §37 81 102 & §37 80 9. Division Engineer §§37 92 301, 502 10. Water rights tabulation §37 92 401 11. Abandonment lists §37 92 401 12. Control headgates and measuring devices §37 84 116 13. Water Right Consultations and Presumptive Findings § § 37 92 302(2)(a), (4) and §37 92 305 14. Water Commissioner § § 37 80 102(2), 102(3) 15. Regulate headgates §§37 92 501, 502 16. Distribute transmountain water §37 83 103 17. Futile calls §37 92 501

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151 18. Inspections (including authority to enter private property), §37 92 502(6) 19. Orders §37 92 502(7) 20. Unlawful transport to another state §37 81 102 21. Ground Water Commission §37 90 104, 111 22. Substitute water supply and replacement plans §37 90 137(11), §37 92 308 23. Interruptible water supply agreements §37 92 309 24. Water banks §§37 80.5 101 107 25. Stat e Engineer authority to administer temporary instream flows §37 83 105 26. Determination of facts for ground water §37 92 302 27. Exchanges §37 80 120(1) 28. Exchanges §37 83 104 29. Loans §37 83 105 30. Leases §37 83 106 31. Scarcity §37 88 109(2)

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152 APPENDIX C FEDERAL ENVIRONMENTAL LAWS AND COLORADO WATER LAW Timeline and Growth of Federal Environmental Laws Environmental law, since 1970, has expanded to encompass the will of the people and Congress. Water managers in Colorado, whether at the State level or local level, therefore, should be cognizant of the shift towards environmental stewardship in protectin g endangered species and maintaining a clean recreational water body. It is clear from the timeline presented below, the obligation of government, via enactment of national laws, is secure, unshakable, expanding, and worthy of detailed planning by state g overnments in reacting to the will of the people. A strong proactive offense by Colorado will alert Federal regulators that Colorado has a plan and intends to follow national laws and be true stewards of the environment. The following timeline of federa l actions relating to the environment and its protection illustrates the full and ever expanding spectrum of legal protections. (Farber and Findley, 2010). 1968 President signs National Environmental Policy Act (NEPA) on January 1, opening the modern era of env ironmental protection. Congress enacts the Clean Air Act (CAA) (major amendments 1990) 1969 Supreme Court decides Citizens to Preserve Overton Park, Inc. v. Volpe creating the modern framework for judicial review of agency rulemaking. 1970 Congress enacts the Cle an Water Act (CWA) (amended in 1987). Supreme Court creates modern standing doctrine in Sierra Club v. Morton. 1973 Congress enacts the Endangered Species Act (ESA)

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1 53 1976 Congress enacts the Toxic Substances Control Act (TSCA) and the Resource Conservation and Recovery Act (RCRA) (amended 1984). 1978 U. S. Supreme Court decides TVA v. Hill 1980 U. S. Supreme Court decides Industrial Union Dept. v. American Petroleum Institute assess ment into U.S. regulation. Congress enacts the Comprehensive Environmental Response, 1981 President Reagan signs Executive Order 12291, inaugurating the era of cost benefit analysis. 1984 U. S. Supreme Court decides Chevron, U.S.A. v. NRDC discretion in interpreting statutes. 1986 CERCLA amended by the Superfund Amendment and Reauthorization Act (SARA). 19 90 Congress adopts cap and trade scheme for SO 2 in Clean Air Act amendments. 1991 Fifth Circuit decides Corrosion Proof Fittings v. EPA eliminating the 1992 U. S. Supreme Court strengthens ta kings doctrine in Lucas v. South Carolina Coastal Council U. S. Supreme Court cuts back on environmental standing in Lucas v. Defenders of Wildlife

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154 1995 U. S. Supreme Court upholds application of the Endangered Species Act to private development in Babb itt v. Sweet Home Chapter of Communities for a Greater Oregon 2001 U. S. Supreme Court holds that cost is irrelevant to setting air quality standards under the Clean Air Act in Whitman v. American Trucking President George W. Bush reverses a campaign pl edge to regulate CO 2 2006 U. S. Supreme Court restricts federal jurisdiction over wetlands in Rapanos v. United States 2007 The Intergovernmental Panel on Climate Change (IPCC) and Vice President Al Gore share the Nobel peace prize. U. S. Supreme Court issues a major decision on climate change, Massachusetts v. EPA. 2008 D.C. Circuit strikes down the Clean Air Interstate Rule, which had attempted to create a cap and trade system for nitric oxides, in North Carolina v. EPA 2009 that greenhouse gases pose a risk to human health and welfare. The above timeline of the progression and expanding growth of environmental law in the U.S. should alert Colorado water officials, managers, legis lators, and the judiciary of the overarching reach of the Federal government. A proactive stance and action by Colorado is prudent and necessary such as adopting adaptive alluvial storage vessels as a viable option in addition to above ground water stora ge reservoirs

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155 Federal Endangered Species Act of 1973 As presented earlier, the proposed Two Forks dam (a Denver Water Board water storage facility), was denied based on the authority of the U.S. Environmental Protection Agency to review dredge and fill permits issued by the U.S. Army Corps of Engineers. Both the Endangered Species Act (ESA) and Clean Water Acts, via existing case law, have overarching power over Colorado water law. As found by (Cassuto and Reed, nt to state water law, the ESA can provide leverage to The ESA is only as strong as its interpretation, however, and that interpretation is subject to judicial caprice. Despi te what many took for granted as clear mandates from Congress regarding the protection of endangered and threatened species, subsequent amendments to the Act and recent judicial opinions render this assumption suspect. Despite its recent dilution, the ESA remains a forceful and explicit statute with significant power to impact both government and private activities. In the explosive realm of water rights, the ESA continues to stand out for its clear Congressional mandate of species protection. As found in Farber and Findley (2010 p governments possess certain quasi property rights stemming from their regulatory powers property rights are defined by the public trust doctri ne government regulations that could otherwise be challenged under the takings clause. Cassuto and Reed (2010), examined water administration and the Endangered Species Act in detail. Th e powerful mandates of the Federal 1973 Endangered Species Act have

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156 and will continue to impact state water rights. Cassuto and Reed (2010), examined the legal history of the act by analyzing selected cases, their respective facts, and interesting and som etimes curious judicial opinions. Perhaps the most efficient method to summarize the finds of Cassuto and Reed, is to list cogent findings in the following subject matter summaries. s Both the US Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) are the responsible federal agencies charge d with enforcing the act. Ibid. The law has four mechanisms for protecting endangered and threatened (3) mandatory agency responsibility to conserve endangered species; and (4) Section four of the Endangered Species Act is the critical component, in that it conserve listed species and to ensure that their actions pose no jeopardy to listed species or their critical Section 9 of the act prohibits anyone from taking a species that has been listed as endangered. Ibid. p. 13 This section is considering long reaching and concise. Ibid.

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157 There is historical interaction between the act and state water law, by either limiting the traditional exercise of established water rights or by restricting or modifying new water projects. Ibid. p. 15 I rrigation rights are the most commonly litigated between the ESA and individual users because irrigation use is inherently harmful to fish. Ibid. p. 16 When agency discretion is allowed by Federal agencies, they face liability in their decisions. For exa mple, the US Army Corps of Engineers could face an ESA challenge regarding proper reservoir levels. Ibid. The US Bureau of Reclamation, while being the primary provider of water for irrigation primarily in the West, is also vulnerable under the ESA. Bec ause of there is conflict between state and federal water allocation policies. Ibid. p. 17 Water users typically claim one or more of the following when there is a conflict w ith their water rights and the ESA, first, the act permits a taking of their property rights, secondly, the ESA water withholding violated the contract rights, and finally, the Congress did not intend for the ESA to overtake the traditional state control o ver water. Ibid. When using these arguments, traditionally the plaintiffs have failed, however recent court decisions illustrate a different pattern. Ibid. The next section is concerned with the ESA and state water law, where under the Supremacy Clause

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158 defers to the states. Typically, land and water planning are central to conflicts between th e ESA and state laws. According to Cassuto, many federal statutes, including the Reclamation Act of 1902, the Federal Power Act, and the Clean Water Act, defer to state control over water, however, the ESA does not. Ibid. p. 18 Congress states Federal agencies shall cooperate with State and local agencies to resolve water resource issues in concert with conservation of endangered species. Ibid. This language was not contained in the original ESA, and was one of several amendments attempting to lesson federal authority to those adversely affected. Ibid. Although well intentioned, the ESA has been successfully applied to return water to streams to protect endangered and threatened aquatic species, in light of the encouraged cooperation. Ibid. A summa ry of significant court decisions are presented in this section of the dissertation. Riverside Irrigation District v. Andrews, 758 F.2d 508(1985) This case involved the construction of a proposed dam and reservoir tributary to the South Platte River. A nationwide permit was denied by the US Army Corps of Engineers (Corps) by reasoning the reservoir would deplete stream flow and potentially impacting downstream whooping crane habitat. Ibid. p. 20 On appeal to the Tenth Circuit (Denver, Colorado) the co F ederal in ESA Section 7 tr sidebar issue, this decision on indirect downstream critical habitat impairment resulting

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159 from an upstream reservoir depleting downstream flows in violation of the ESA, could offer Florida and Georgia leverage in their conflict with upstream Georgia users. Ibid. United States v. Glenn Colusa Irrigation District, 788 F. Supp. 1126(1992) In 1992 this court decision specifically address section (C)(2) of the ESA, when a California district c ourt affirmed that state water rights are subordinate to the ESA. Ibid. p. 21 The National Marine Fisheries Service (NMFS) brought this action to protect winter run Chinook salmon, a threatened species and the agency sough to enjoin the irrigation distri The court decided that due to the priority given to listed species by the US Congress, the federal mandates of the ESA override state water rights and by stating state water rights do water rights are also overridden by the ESA. this strategy has resulted in some noteworthy successful opinions. This section discusses the property rights claims when dealing with water rights and compliance to the ESA. Two ca ses will be summarized as to facts, application of law, and the judicial opinions. Tulare Lake Basin Water Storage District v. United States, 49 Fed. CI. 313 (2001) In Tulare, water users in California brought suit, claiming the United States took their p roperty, being water rights, for public use or benefit. The Court of Federal Appeals ntiffs, the Tulare Lake Basin Water Storage District, sought Fifth Amendment compensation for their claimed loss.

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160 The facts of this case involve the delta smelt and winter run Chinook salmon, which at the time, were listed under the Endangered Species A ct. Both the USFWS and the NMFS restricted water out flows for the sole purpose of helping the fish. Ibid. p. 26 Hence, a conflict between the ESA and private property rights. According to Cassuto, s, the court determined that the impact of the ESA on water right holders in the Tulare Basin could and did constitute a physical rather than a regulatory taking an actual expropriation of property rather than a regulation that simply rendered the proper The court based its decision on the following: state nor its agents may of water to be mad e available for delivery to the Agency under this contract caused by drought, operation of area or origin statutes or any other cause beyond Furthermore, the contract shielded the state but not the federal government and that the actio ns of the federal government were responsible for interrupting the water deliveries to the district. Ibid. Therefore, since the federal government did not have a protective shield and depriving the plaintiffs of their water rights, the p. 27 This case was the first to illustrate the failure to received water was deemed to be a compensable taking and compensation was awarded. This decision does not dissect the difference

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161 usufructuary property right. Because of this lack of specificity, there is a bit of uncertainty in takings jurisprudence. Ibid. Casitas Municipal Water District V. United States 543 F.3d 1276 ( Fed. Cir. 2008) This issue of takings involving diverted water was revisited in the US Court of Appeals for the Federal Circuit in Casitas Municipal Water district v. United States. Ibid. p. 27 In this case, a California water district sued the Bureau o the Bureau diverted irrigation water and installed a fish ladder to protect steelhead trout under the ESA, constituted an uncompensated taking of property. Ibid. The court concluded the Bureau faced no liability under a breach of contract theory and the issuance of the biological opinion under the ESA was a sovereign for the op eration of the fish ladder, was, in fact a taking. The contract, as in District shall have the perpetual right to use all water that becomes available through the construction in the reservoir and not in the river. The court disagreed, by stating the provision, that Casitas shall have the perpetual right to water made available by construction and operation of the Project and that the United States will not appropriate any of the Project water for other uses (i.e., Ibid. The court concluded the

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162 the Cassuto concludes by asserting these two cases illustrate that water rights are property rights and that a taking results unless there is compensation and that federal agencies will avoid taking actions that could trigger a Fifth Amendment claim. the Bureau of Reclama tion, and the ESA. Even if new commitments involve reconsidering existing water delivery contracts, ESA consultations are required. Ibid. p. 30 In addition, the ESA can place limits on the number of permits for new water projects, if those projects m ay present risk to listed species. Ibid. The following five cases illustrate the leverage of Section 7 over Bureau delivery obligations under water service agreements. Carson Truckee Water Conservancy Dist. et al v. William P. Clark, et al, 741 F.2d 257 (9 th Cir. 1984) listed fish species as the expense of farming and municipal water us e. The court determined that sections 7(a)(2) and 7(a)(1) direct the Secretary (of the The district focused on 7(a)(2), but the court found this not a pplicable since no new project was undertaken and that the affirmative duty was to conserve under 7(a)(1). Ibid.

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163 no longer require ESA protection, to give priority to the fish. Therefore, under these set of facts, when insufficient water exists, and there are listed species, the conservation mandate of the ESA overrides municipal and industrial water use. Ibid. p. 32 th Cir. 1995) In this case, the Ninth Circuit held an existing contract to deliver water, when it would contradict the ESA, did not obligate the federal government to deliver the full amount of water. Ibid. The terms of the contract stated the government was not liable phrase proved problematic as the court held that shortages created through compliance ability. Ibid. In this case, the fifty percent reduction in water considered necessary for fish preservation under the ESA, was allowed. Ibid. Natural Resources Defense Council, et al v. David Houston, et al, 146 F.3d 1118 (9 th Cir. 1998) This is another Ninth Circuit case where environmental groups sued to enjoin the Bureau of Reclamation from entering into renewal contracts to supply water, when doing so would endanger Chinook salmon. Ibid. p. 33 The arguments by the Bureau were based u programs of any kind authorized, funded, or carried out, in whole or in part, by Federal

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164 ag Ibid. Klamath Water Users Protective Ass., et al v. Roger Patterson, et al, 204 F 3d 1206 (9 th Cir. 1999) Again the in the Ninth Circuit court, this case involved a con tract, dating back to 1917, where the Bureau of Reclamation took possession of a dam, but gave operational control to another party. When two fish were listed, the Fish and Wildlife Service (FWS) issued a biological opinion requiring a specified minimum w ater level. The irrigators argued they were entitled as third a benefit from the Project achieving similar st not override the dictates of the ESA. Ibid. p. 34 some Bureau of Reclamation project authorizations could survive an ESA challenge, since Section 7 applies only to discretionary federal actions, that if authorizing legislation offers no discretion to adjust water deliveries, therefore, Section 7 does not apply. Ibid. the Bureau must comply with Section 7 when its contracting or project operations affect listed species, it must consult on operations of existing projects where water use will impact listed species, and its duties under Section 7(a)(2) take priority over its contractual

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165 The ESA and Groundwater About half of the US population relies on groundwater for drinking and half of irrigated agriculture uses groundwater. (Ibid. p. 35) Groundwater, when compared to surface water, under the auspices of the ESA, there is no difference nor distinction. Ther e have been only a few cases involving groundwater and the ESA, however, with increasing populations and shrinking habitat, future litigation is a certainty. Cassuto and Reed offer a discourse on one case that is presented below. Sierra Club v. City of S an Antonio, 112 F.3d 789 (5 th Cir. 1997) The City of San Antonio, Texas relies on the Edwards aquifer for its water supply, but is also houses threatened and endangered species, including the tiny fountain darter. Ibid. In 1996 the region had a severe d rought and the over drafting of groundwater for municipal water purposes, threatened the habitat of the fountain darter. violation of the ESA and sought an injunction for the Cit y to reduce, not eliminate, water withdrawals to maintain minimum natural flows. Ibid. The city appealed the district courts preliminary injunction, and the Sierra Club appealed to the Fifth Circuit. The noting that the Edwards Aquifer Authority (a state authority) had proceeded with a rulemaking for the granting of permits actions. The court highlighted the and comprehensive nature of the state regulatory scheme in issue, and decided that regulation of the aquifer was best left to the

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166 Conclusion on the ESA and State Water Law and Federal Agency Discretion Cussuto and Reed illustrate that the ESA is not subservient to state water law and can exercise leverage over Federal agencies including the Bureau of Reclamation, by altering water allocation. However, recent judicial opinions render this assumption, questionable. The ESA still has a forceful and powerful statute and when dealing with state water rights, a consistent pattern of judicial opinions has yet to form. The Ninth Circuit appears to have a consistent pattern of opinions, and it should be noted the location of the circuit court being in California, is also a state with a strong Public Trust Doctrine. Summary of Appendix This appendix illustrated the potential overarching legislated power that the Whether Colorado will succumb to this power will fall upon, in large part, to the ability of administrative agencies working in concert with the Colorado judiciary. The district water courts and the Division Engineers are the key operators in this instanc e. Case law from the many cases cited in this section via the judicial opinions of various circuit courts, shows the consistent interpretations of national laws, are not always accomplished. For Colorado administrative agencies, such as the Division of W ater Resources or the Water Conservation Board, this is not a welcoming trend.

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167 APPENDIX D TIMELINE OF COLORADO GROUNDWATER WELL REGULATION SOUTH PLATTE RIVER BASIN By Hal Simpson, P.E. September 2006 Background REA's and turbine pump technology became available Platte, Arkansas and Rio Grande river basins legally constructed tion administrative only with no basis to deny unappropriated water must be available before issuing a well permit well permits not issued in over appropriated basins South P latte, Arkansas, Rio Grande 1960's dry conditions and low streamflows resulted in complaints by senior surface water rights on South Platte and Arkansas that wells were causing depletions and should be regulated as were surface water rights ision Engineer in the Arkansas River basin attempted to regulate a limited number of wells in June of 1966 to respond to senior surface water rights demands People where the c ourt found that the Division Engineer must regulate wells under rules and regulations established prior to any attempt to regulate wells and that

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168 there must be a reasonable lessening of material injury to senior water rights the statement by Justice Groves that "as administration of water approaches its second century, the curtain is opening upon the new drama of maximum utilization and how that doctrine can be integrated into the law of vested water rights" islature authorized two studies by consulting engineers to determine if unregulated wells were causing depletions to stream flows. Both studies found that the declining stream flow was related to increased well pumping since the 1950's. enacted the 1969 Water Rights Determination and Administration Act that requires all tributary wells to file for adjudication by July 1, 1972 and further required the State Engineer to administer the wells once adjudicated in the priority system. Furtherm ore, the State Engineer could promulgate rules to assist in the administration of wells. basis, i.e., one per week in 1970, two days in 1971, and so on unless wells were operat ing in accordance with a court approved augmentation plan or a plan approved by the State Engineer under CRS 37 80 120. week trial took place in 1974. The trial was recessed and the partie s stipulated to a decree incorporating the rules as proposed that was issued in 1974 associations or conservancy districts to develop plans to replace well depletions

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169 that occurred when there was a call on the South Platte River, which in the 1970's, 1980's and 1990's was usually just the months of July and August. (3000 wells) and the Central Colorado Wat er Conservancy District's Ground Water Management Subdistrict ("Central WCD") was formed in 1973 (1000 wells). Both organizations operated under annual replacement plans, or substitute water supply plans ("SWSP") approved by the State Engineer. Both plans relied on the fact that the period for senior calls was very limited due to good runoff conditions. Engineer Simpson continued this annual approval of SWSP's in 1992 with a s trong warning in each letter of approval that both organizations needed to prepare for a drought condition and acquire more water. Central WCD did acquire more water since it has a tax base to use to payoff indebtedness. GASP did not have this ability and relied on annual assessments to each well owner based on acre feet pumped. Homeowners Association and Moyers. This involved access issues, but a fight over water also developed and the issue was the State Engineer's approval of a SWSP under CRS 37 80 120 that allowed a trout pond to be filled by exchange out of the Arkansas River up a small tributary. The Water Judge ruled that, in his interpretation of the statutes, t he legislature did not give the State Engineer authority to approve SWSP's. This ruling was appealed to the Colorado Supreme Court in 2001. The Supreme Court issued its opinion in late 2001 (Empire Lodge

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170 v. Moyers. 39P2d 1139 {Colo. 2001)) agreeing with th e Water Court. This had a direct impact on the annual approval of SWSP's in the South Platte River basin since the State Engineer no longer had the authority to approve the plans. 1414 which allowed the State Engineer t o approve an SWSP if an application for a plan for augmentation was pending in Water Court. the rules promulgated successfully in the Arkansas River basin in 1996. These rules would allow the State Engineer to annually approve replacement plans (SWSP's) that met the much more stringent standards proposed in the rules. Water Judge ruled that annual approval of replacement plans were not allowed by statute and this ruling was appealed to the Supreme Court in late 2002. rights began in June and stayed on the rest of the year. The calls in 2003 were nearly for the entire year and in 2004 the situation was similar. This required considerably more augmentation water and GASP decided to go out of business. It finished its sale of water assets in 2006. The Central Colorado WCD's SWSP had to lease additional water to be able to be approved in these years. Engineer Simpson in May 2002, and agreed with the Water Court that there is not statu tory authority for this type of rules for well administration and remanded the rules back to the Court for consideration of the portion of the rules that pertained to

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171 an interstate compact (Simpson v. Bijou, 69 P.3d 50 (Colo. 2003)). oved SB03 73 in March of 2003 giving well organizations in the South Platte three years to file a plan for augmentation with the Water Court and allowed the State Engineer to annually approve a SWSP after conducting a hearing. roval of a SWSP under SB03 73 and the plan was approved to allow for replacement of ongoing stream depletions that resulted from past pumping, but no pumping was allowed in 2003. urt in May of 2003 and sought approval of a SWSP for 380 wells. The plan was approved in June of 2003. This group was composed of former members of GASP. included the above 38 0 wells and 61 additional wells for a total of 441 wells. A SWSP was approved for the Central WAS in April 2004. its augmentation plan that was set for May 8, 2006 to February of 2007. The Judge agreed but only after the many objectors who had appealed the approval of the 2003 and 2004 SWSP's were allowed to have a hearing beginning on May 8 to show how the operatio n of SWSP's had injured their water rights. proposed pumping quota of 20 percent of average pumping and with a projected

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172 annual call period of 70 percent of the year. Based on an annual call of only 70 percent, Central WAS projected junior diversions to storage and recharge could provide almost 5,700 acre feet of replacement water (approximately 50 percent of total replacement wat er in the plan). The 70 percent annual call period also reduced the amount of out of priority depletions that needed to be replaced. After considerable review in April, a preliminary decision was reached by State Engineer staff that based on the above aver age April 1 snowpack, the plan may work if the number of days of "no call" were reasonable. This would allow the WAS plan to store water under a junior water right in a lined gravel pit (2,359 acre feet of storage was initially projected for the Shores Pit Later information revealed only 1,500 acre feet of storage volume was available and the liner for the pit had yet to complete a test to ensure it did not leak) and to use some recently completed recharge sites. A reduction in the number of days of "no ca ll" required Central WAS to seek to obtain additional replacement sources. At that time, some leases still had not been signed and State Engineer was waiting on these when the May 1 snowpack information became available. That information showed that the sn owpack had declined to well below average and the State Engineer's projected number of days of "no call" was reduced to nearly zero. This reinforced the need for Central WAS to obtain additional replacement water. Some of the leased water from Fort Collins (4,000 to 5,000 acre feet) was not available due to the changing runoff situation. The city wanted to wait until later in the year to see if they could still lease it to WAS. The WAS plan projection was updated on May 5 to include all legally available wa ter. The increasing shortage that resulted from reduced lease

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173 water and storage would be made up by pumping augmentation wells by the amount of approximately 8,400 acre feet. The out of priority depletions in 2006 totaled approximately 16,000 acre feet wit h a pumping quota of 15 percent. According to the projection provided by Central WAS, for 2007 and 2008, there would be no CBT water available since it cannot be used in a permanent plan for augmentation (policy of Northern Colorado WCD). Since CBT water played such a large role in the 2006 year plan, this would require that the augmentation wells would have to be pumped by an even larger amount in 2007 and 2008. This pumping only postpones the timing of replacement water and creates a future obligation that WAS could not meet with existing water rights and assets. and WAS around 1 :00 p.m. on May 5 that he could not approve the pl an, and suggested that if he denied the plan, Central WAS could appeal it to the Water Judge to consider with the appeals of the approval of the 2003 and 2004 SWSP's beginning on May 8. ys, decided to withdraw the SWSP request. They stipulated with the objectors to agree to not pursue approval of the 2006 SWSP if the objectors agreed to withdraw their appeals of the 2003 and 2004 SWSP's. This stipulation was incorporated into an order by Judge Klein issued on May 8, 2006 after a short hearing that morning. The order also states that the member wells cannot be pumped until the Court approves an augmentation plan which creates a major problem for Central WAS to pump in 2006.

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174 APPENDIX E Dick Wolfe, P.E.* (Author, 2006 Edition, 2007 2012 Supplements) Joseph (Jody) Grantham (Author, 2008 2012 Supplements) Colorado Ground Water Commission INTERNATIONAL AND INTERSTA TE DOCUMENTS AFFECTING USE OF WATER International Treaties Mexican Treaty on Rio Grande, Tijuana, and Colorado Rivers 1945 Interstate Compacts Colorado River Compact 1922 La Plata River Compact 1922 South Platte River Compact 1923 Rio Grande River Compact 1938 Republican River Compact 1942 Costilla Creek Compact 1944 (Rev 1963) Upper Colorado River Compact 1948 Arkansas River Compact 1948 Animas La Plata Project Compact 1969 U.S. Supreme Court Cases Nebraska v. Wyoming 325 U.S. 589 (1945) Wyoming v. Colorado 353 U.S. 953 (1957) Agreements Pot Creek Memorandum of Understanding 2005 (1958) Sand Creek Memorandum of Agreement 1997

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175 COLORADO RIVER COMP ACT (C.R.S. §§ 37 61 101, et seq .) November 24, 1922 Signatory States: Arizona, California, Colorado, Nevada, New Mexico, Utah and Wyoming Major Purposes: Equitable division of the waters of the Colorado River (Art. I) Establish relative importance of different uses (Art. II) Promote interstate comity (Art. I) Remove causes of present and future controversies (Art. I) Secure expeditious agricultural and industrial development of the basin (Art. I) Important Provisions: Divides Colorado River Basin into the Lower Basin (California, Arizona, Nevada) and the Upper Basin (Colorado, Utah, New Mexico, Wyoming) at Lees Ferry, Arizona. o (Art. I and II) Allocates 7,500,000 acre feet of consumptive use to each basin per annum. (Art. III) Allows Lower Basin to increase its consumptive use by 1,000,000 acre feet per year. (Art. III) Provides for Mexican allocation, first from surplus waters above the 15,000,000 acre feet per year, and secondly splits obligation equally between the basins. (Art. III) Provides that Upper Basin shall deliver 75,000,000 acre feet in each consecutive 10 year period to the Lower Basin. (Art. III) Subordinates navigation use to domestic, agriculture, and power purposes. (Art. IV) Subordinates power use to domestic and agricultural purposes. (Art. IV) Termination of compact by unanimous agreement of all signatory states. (Art. X)

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176 LA PLA T A RIVER COMP ACT (C.R.S. §§ 37 63 101, et seq .) November 27, 1922 Signatory States: Colorado and New Mexico Colorado Commissioner: State Engineer Major Purposes: Equitable distribution of the waters of the La Plata River (Preamble) Remove causes of present and future controversy (Preamble) Promote interstate comity (Preamble) Important Provisions: State of Colorado shall at her own expense operate two gaging stations on the La Plata River; one being the Hesperus station and one being the interstate station at or near the state line. (Art. I) Flow at the Hesperus station means the river flow at that station plus the amount of concurrent diversions above that station. (Art. I) Flow at the interstate station means the river flow at that station plus one half of the concurrent diversions of the Enterprise and Pioneer Canals, plus any other diversion in Colorado for use in New Mexico. (Art. I) Both gages will be operated between February 15 and December 1. (Art. I) Between December 1 and February 15, each state has unrestricted use of all water within its boundaries. (Art. II) Between February 15 and December 1, the water shall be apportioned as follows: o Each state has unrestricted use on those days where the interstate station has a mean daily flow of 100 cfs or more. (Art. II) o On all other days, Colorado must deliver to the interstate station half of the mean flow at Hesperus for the preceding day but not more than 100 cfs. (Art. II) Whenever the flow is so low that the state engineers of each state agree that greater beneficial use can be obtained, the water can be distributed to each state successively in alternate periods in lieu of the schedule set in (6) above. (Art. II) Substantial delivery of water in accordance with the Compact is deemed a compliance, and minor irregularities shall be disregarded. (Art. II)

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177 Compact can be modified or terminated by mutual consent of the signatory states.

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178 SOUTH PLA TTE RIVER COMP ACT (C.R.S. §§ 37 65 101, et seq .) April 27, 1923 Signatory States: Colorado and Nebraska Colorado Commissioner: State Engineer Major Purposes: 1. Remove all causes of present and future controversy between the states and its citizens with respect to the South Platte River (Preamble) 2. Promote interstate comity (Preamble) Important Provisions: means that portion of the South Platte in Colorado upstream of the west boundary of Washington County. (Art. I) means that portion of the South Platte between the west boundary of Washington County and the stateline. (Art. I) means the measured flow at Julesburg plus the inflow below that station and above the diversion works of the Western Irrigation District in Nebraska. (Art. I) The waters of Lodgepole Creek are divided at a point two miles north of the stateline. Nebraska is entitled to exclusive use above the division point, and Colorado has exclusive use of all waters below the division point. (Art. III) Colorado has the right to full and uninterrupted use of all the waters in the during the period of October 15 to April 1, except that should Nebraska construct the South Divide Canal with a heading near Ovid, Colorado, then that canal will bear an appropriation date of December 17, 1921, and Colorado shall have full use of the waters in plus 35,000 acre feet less the amount diverted by the South Divide Canal under its appropriation date during the period October 15 to April 1. (Art. IV and VI) Between April 1 and October 15, Colorado shall not permit diversions from the by Colorado appropriators whose decrees are junior to June 14, 1897, on any day when the inter state station shows a mean flow less than 120 cfs. (Art. IV)

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179 Because of climatic conditions, minor irregularities in the delivery of water shall be disregarded. However, if a deficiency in delivery should result from neglect on the part of Colorado, the deficiency shall be made up within 72 hours. (Art. IV) Colorado waives any objection it may have to the diversion of waters in Colorado for use in Nebraska through the Peterson Canal or other canals in the Julesburg Irrigation District. (Art. V) The Compact may be modified or terminated by mutual consent of the signatory states. (Art. X)

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180 RIO GRANDE COMP ACT (C.R.S. §§ 37 66 101, et seq .) March 18, 1938 Signatory States: Colorado, New Mexico, and Texas Colorado Commissioner: State Engineer Major Purposes: T o remove all cause of present and future controversy between the states concerning the waters of the Rio Grande above Ft. Quitman, Texas (Preamble) T o promote interstate comity (Preamble) T o effect an equitable apportionment of the waters of the Rio Grande above Ft. Quitman, Texas (Preamble) Important Provisions: Rio Grande Basin means all of the territory drained by the Rio Grande and its tributaries in Colorado, New Mexico and Texas. The Commission shall cause to be maintained and operated, among others, the following stream gaging stations: (Art. II) o Rio Grande near Del Norte above the principal points of diversion to the San Luis V alley o Conejos River near Mogote o Los Pinos River near Ortiz o San Antonio River at Ortiz o Conejos River at its mouth near Las Sauses o Rio Grande near Lobatos o Automatic water stage recorders on all reservoirs constructed after 1929, as well as stream gaging stations below such reservoirs. Colorado is obliged to deliver at Lobatos the sum of the amounts set forth in the delivery sched ules for the Conejos River and the Rio Grande less 10,000 acre feet. The Conejos Index Supply includes the San Antonio River and Los Pinos River flows for the months April through October. These schedules require zero delivery for an index of 100,000 acre feet, up to 68% delivery for an index of 700,000 acre feet on the Conejos, and 30% delivery for an index of 200,000 acre feet, and up to 60% delivery for an index of 1,400,000 acre feet on the Rio Grande (see attached graph). (Art. III)

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181 If the Closed Basin is used for delivery of water to the Rio Grande, the water must contain no more than 45% sodium ions in the total positive ion count when total dissolved solids exceed 350 ppm. (Art. III) Delivery credits and debits shall be computed on the basis of each calendar year, and annual or accrued debit shall not exceed 100,000 acre feet except as either or both may be caused by holdover storage in reservoirs constructed after 1937. (Art. VI) Colorado shall retain, insofar as possible, water in storage at all times to the extent of her accrued debit. (Art. VI) In any year in which actual spill occurs, accrued credits are reduced in proportion to the amount of credit held by Colorado and New Mexico, and both states do not have a delivery obligation. In any year in which there is actual spill of usable water, all accrued debits are canceled. (Art. VI) In any year that accrued debits exceed the minimum unfilled capacity of project storage, such debits shall be reduced proportionally to an aggregate amount equal to the minimum unfilled capacity. (Art. VI) No increase in storage in reservoirs constructed after 1929 is permitted whenever there is less than 400,000 acre feet of usable water in project storage. (Art. VII) During January of any year, the Commissioner for Texas or New Mexico may demand the release of water from reservoirs constructed after 1929 to the amount of the accrued debit of Colorado and/or New Mexico. (Art. VIII) Review of nonsubstantive changes in the Compact can be considered every fifth year. (Art. XIII) The schedules of delivery in the Compact shall never be changed as a result of an increase or diminution in the delivery of water to Mexico. (Art. XIV)

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182 REPUBLICAN RIVER COMP ACT (C.R.S. §§ 37 67 101, et seq. ) Updated December 31, 1942 Signatory States: Colorado, Kansas and Nebraska Colorado Commissioner: State Engineer Major Purposes: Provide for most efficient use of water for multiple purposes (Art. I) Remove all present and future controversy (Art. I) Promote interstate comity (Art. I) Recognize that the most efficient utilization of waters in the basin is for beneficial consumptive use (Art. I) Promote joint action between the U.S. and the states in the efficient use of water and in the control of floods (Art. I) Important Provisions: Allocation of waters are based on a computation of average, annual virgin water supply in the respective streams. (Art. III) Colorado is allocated the beneficial use of the following waters on an annual basis: North Fork of the Republican 10,000 acre feet Arikaree River 15,400 acre feet South Fork of the Republican 25,400 acre feet Beaver Creek 3,300 acre feet Total 54,100 acre feet plus the entire supply of Frenchman Creek and Red Willow Creek in Colorado. (Art. IV) Kansas is allocated on an annual basis 190,300 acre feet of beneficial consumptive use and Nebraska 234,500 acre feet. (Art. IV) No provision is made for any debit or credit system, but provisions are made for readjustment of historical, annual virgin flows should they vary more than 10% from those set forth in the Compact. Reallocations can be made on these readjusted flows. (Art. III)

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183 COSTILLA CREEK COMP ACT (C.R.S. §§ 37 68 101, et seq .) September 30, 1944 (Amended February 7, 1963) Signatory States: Colorado and New Mexico Colorado Commissioner: State Engineer Major Purposes: Equitable division of the waters of Costilla Creek (Art. I) Remove present and future causes of interstate controversy (Art. I) Assure the most efficient utilization of water (Art. I) Provide for integrated operation of existing and prospective irrigation facilities in the two states (Art. I) Adjust conflicting jurisdictions of the two states over irrigation works diverting and storing water in one state for use in both states (Art. I) Equalize benefits of water from Costilla Creek (Art. I) Place the beneficial application of water on an equal basis in both states (Art. I) Important Provisions: Provides for the calculation of a safe yield prior to delivery of water each year. (Art. II) Defines an irrigation season (May 16 Sept. 30) and a storage season (Oct. 1 May 15). (Art. II) Establishes a duty of water of one cubic foot per second for each 80 acres of land irrigated. (Art. III) Involves the relinquishment of Colorado water rights and the change of decreed amounts. (Art. III) Establishes schedules of delivery to each state based on water available. (Art. V) Prohibits direct flow diversions during the storage season. (Art. V)

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184 UPPER COLORADO RIVER COMP ACT (C.R.S. §§ 37 62 101, et seq.) October 11, 1948 Signatory States: Arizona, Colorado, New Mexico, Utah and Wyoming Colorado Commissioner: Appointed by the Governor Major Purposes: Provide for the equitable division of the waters of the Upper Basin allocated by the terms of the Colorado River Compact (Art. I) Establish the obligations of each state of the Upper Basin with respect to required deliveries at Lee Ferry, as set forth in the Colorado River Compact (Art. I) Promote interstate comity (Art. I) Remove causes of present and future controversies (Art. I) Secure the expeditious agricultural and industrial development of the Upper Basin (Art. I) Important Provisions: Apportionment of waters of the Upper Basin as follows: Arizona 50,000 acre feet/yr. o Of the total beneficial consumptive use allocated to the Upper Basin less the 50,000 acre feet per year to Arizona, the apportionment is (Art. III): Colorado 51.75% New Mexico 11.25% Utah 23.00% Wyoming 14.00% The apportionment is based upon the allocation of man made depletions, and beneficial use is the basis, the measure, and the limit of the right to use. (Art. III)

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185 No state shall exceed its apportioned use in any water year when the effect of such use is to deprive another signatory state of its apportioned use. (Art. III) If a call should be placed at Lee Ferry by the Lower Basin, the extent of curtailment by each state of the Upper Basin shall be determined by the following: o The extent and times of curtailment shall assure full compliance with Article III of the Colorado River Compact. (Art. III) o If any state shall have in the ten year period preceding the call exceeded its allocation, it shall make up that overdraft before demand is placed on any other state. (Art. IV) o Curtailment shall be proportioned among the states in the same ratio as beneficial use of waters occurred during the preceding year, provided that use by rights which predate November 24, 1922, shall be excluded. (Art. IV) The Compact recognizes the provisions of the La Plata River Compact, and consumptive use of water under it shall be charged to the respective states under Article III of this Compact. (Art. X) Apportions the waters of the Little Snake River between Colorado and Wyoming differentially between rights perfected before the Compact and those perfected after its signing. (Art. XI) Apportions the waters of Fork, a tributary of the Green River between Utah and Wyoming. (Art. XII) Apportions the waters of the Y ampa River between Colorado and Utah such that Colorado must ensure that the flow of the Y ampa at Maybell must not fall below 5,000,000 acre feet for any consecutive 10 year period. (Art. XIII) Apportions the waters of the San Juan River system between Colorado and New Mexico in such a way that Colorado agrees to deliver in the San Juan and its tributaries enough water to meet New entitlement under Article III considering the water which originates within New Mexico proper. (Art. XIV)

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186 ARKANSAS RIVER COMP ACT (C.R.S. §§ 37 69 101, et seq .) December 14, 1948 Signatory States: Colorado and Kansas Colorado Commissioners: One resident from former Water District 14 or 17, one resident from former Water District 67, and the Director of the Colorado Water Conservation Board Major Purposes: Settle existing and future controversy between the states concerning the utilization of the waters of the Arkansas River (Art. I) Equitably divide and apportion the waters of the Arkansas River between Colorado and Kansas as well as the benefits which arise from the construction of John Martin Reservoir (Art. I) Important Provisions: The conservation pool at John Martin Reservoir will be operated for the benefit of water users in Colorado and Kansas, both upstream and downstream from the dam. (Art. IV) The Compact is not intended to impede development of the Arkansas Basin in either state pro vided that the waters of the Arkansas River shall not be materially depleted in usable quantity or availability. (Art. IV) From November 1 to March 31 (winter storage) of each year, all water entering John Martin Reservoir shall be stored up to the limit of the conservation pool, except that Colorado can demand release of the river inflow up to 100 cfs as long as no waste occurs. (Art. V) Summer storage in John Martin Reservoir shall commence on April 1 and continue to October 31 of each year. All water entering the reservoir during this period shall be stored except: o When Colorado water users are operating under decreed priorities. o Colorado may demand releases of river inflow up to 500 cfs and Kansas may demand releases of water equivalent to that portion of river inflow between 500 cfs and 750 cfs regardless of Colorado releases. (Art. V) Releases of stored water shall be made upon concurrent or separate demands by Colorado or Kansas at any time during the summer storage period. Limitations imposed are:

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187 o Unless specifically authorized by the Compact Administration, separate releases by Colorado shall not exceed 750 cfs and separate releases by Kansas shall not exceed 500 cfs. o Concurrent releases shall not exceed 1250 cfs. o When water stored in the conservation pool is less than 20,000 acre feet, releases to Kansas shall not exceed 400 cfs and concurrent releases shall not exceed 1000 cfs. (Art. V) When the supply in the conservation pool falls below a 14 day supply level, the Compact Administration will notify the State Engineer of Colorado of the date when the supply will be exhausted, and at that time, Colorado priorities above and below the dam will be administered together. (Art. V) When water is available in the conservation pool at John Martin Reservoir, Colorado users above the dam shall not be affected by priorities located below John Martin Reservoir. (Art. V) When Colorado reverts to administration of decreed priorities, Kansas shall not be entitled to any river flow entering John Martin Reservoir. (Art. V) The 1980 Operating Plan approved by the Compact Administration modifies Article V by establishing separate volumetric accounts for each state that can be released from John Martin Reservoir when directed by each state. The Colorado account is 60 percent and the Kansas account is 40 percent of any water stored pursuant to the Compact.

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188 ANIMAS LA PLA T A PROJECT COMP ACT (C.R.S. §§ 37 64 101, et seq .) June 7, 1969 Signatory States: Colorado and New Mexico Colorado Commissioner: Not Specified Major Purposes: Implement the operation of the Animas La Plata Reclamation Project Consideration of interstate comity Important Provision: Provides New Mexico with the right to divert and store water from the La Plata and Animas River systems under the Project with the same validity and equal priority as those rights granted by Colorado courts for Colorado users of Project water, providing such uses are within New allocation in the Upper Colorado River Compact.

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189 NEBRASKA v WYOMING 325 U.S. 589 (1945) Important Provisions: Colorado is prohibited from diverting water from the North Platte River and its tributaries for irrigation of more than 135,000 acres in Jackson County during one irrigation season. (This value was changed to 145,000 acres by the Court on June 14, 1953). Colorado is prohibited from storing more than 17,000 acre feet of water for irrigation purposes from the North Platte River and its tributaries in Jackson County between October 1 of any year and September 30th of the following year. Colorado is prohibited from exporting out of the basin of the North Platte River and its tributaries in Jackson County more than 60,000 acre feet in any consecutive 10 year period. Colorado and Wyoming are required to maintain accurate records of irrigated acreage, volumes of water stored, and volumes of water exported for inspection at all times. This decree does not affect or restrict the use or diversion of water from the North Platte River and its tributaries for ordinary and usual domestic, municipal, and stock watering purposes.

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190 WYOMING v COLORADO 353 U.S. 953 (1957) Important Provisions: 1. Permits Colorado to divert from the Laramie River and its tributaries 49,375 acre feet per year, subject to the following limitations: No more than 19,875 acre feet per year may be diverted by Colorado for use outside the basin. No more than 29,500 acre feet per year may be diverted by Colorado for use within the basin, of which not more than 1,800 acre feet can be diverted after July 31 of each year. Any portion of the 19,875 acre feet per year not diverted by Colorado for use outside the basin can be added to the 29,500 acre feet per year permitted for use within the basin. All waters diverted by Colorado for use within the basin are restricted to irrigation use on those lands designated by the court at the time of the decree. 2. This decree does not prejudice the right of either state to exercise the use of the waters of Sand Creek.

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191 POT CREEK MEMORANDUM OF UNDERSTANDING April 1, 1958 Signatory States: Colorado and Utah Major Purpose: Develop a workable and equitable division of the waters of Pot Creek between the signatory states. Important Provisions: Both states agree that a Compact is necessary, but that prior to its formulation, a workable sys tem must be developed. The states agree to the appointment of a water commissioner with authority to administer in both states with Colorado bearing 20% of his or her expenses. Establishes a schedule of priorities for use in both states and defines a period before which direct flow diversions cannot be exercised, namely May 1 of each year.

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192 SAND CREEK MEMORANDUM OF AGREEMENT March 13, 1939 Revised August 7, 1997 Signatory States: Colorado and Wyoming Major Purpose: T o allocate the waters of Sand Creek between the signatory states in accordance with the priority water rights in each state. Important Provisions: Recognize that Wyoming water rights are entitled to 50.68 cfs prior to diversions by Colorado ditches. Amended in 1997 to require delivery of 40 cfs to the stateline by Colorado for a seven day period at the commencement of the irrigation season. Thereafter, Colorado is required to deliver 35 cfs, if physically available, to the stateline if needed for irrigation in Wyoming. Limits diversions of the Wilson Supply Ditch (transbasin diversion) and the Sand Creek Ditch to amounts of water in excess of that allocated to Wyoming.

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193 A PPENDIX F WATER ADMINISTRATION IN CALIFORNIA, NEW MEXICO, AND WYOMING California California was one of 10 states that originally recognized riparian rights, but later converted to a system of appropriation while preserving existing riparian rights (California Department of Water Resources website) The other states are Kansas, Mississippi, Nebraska, North Dakota, Oklahoma, Oregon, South Dakota, Texas, and Washington. The fundamental principle of the riparian doctrine is that the owner of riparian land, i.e., land bordering a water body, acquires certain rights to use the water. Each riparian landowner may make reasonable use of the water on the riparian land if the us e does not interfere with reasonable uses of other riparian owners. With statehood, California adopted the English common law familiar to the eastern seaboard, with such law including the riparian doctrine. California water law was set on a different co urse in 1849, when thousands of fortune seekers flocked to California following the discovery of gold. The water carried in these systems often had to be transported far from the original river or stream. The miners instituted a first in time, first in ri ght methodology to determine who could use the water first. In 1850, California entered the Union as the thirty first state. One of the first actions taken by its lawmakers was to adopt the common law of riparian rights. However, one year later, the Leg islature recognized the appropriative right system as having the force of law. The appropriative right system continued to increase in use as agriculture and population centers blossomed and ownership of land was transferred into private hands. Ibid.

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194 Th legal disputes. Initially, riparian right holders were not required to put water to reasonable and beneficial use; however, this was modified by constitutional amendment (Artic le X, Section 2 of the California Constitution). farmers, had simply taken control of and used what water they wanted. However, the Water Commission Act of 1914 established appropriative rights are governed by the hierarchy of priorities developed by the miners. Although pre and post 1914 appropriative rights are similar, post 1914 rights are subject to a much greater degree of scrut iny and regulation by the State Water Resources Control Board (State Water Board). Riparian rights still have a higher priority than appropriative rights. The priorities of riparian right holders generally carry equal weight and during a drought, all sh are the shortage among themselves. Relative to groundwater, overlying land owners may extract percolating ground water and put it to beneficial use without approval from the State Board or a court California recently passed legislation to explore a permit process for regulation of groundwater use In several basins, however, groundwater use is subject to regulation in accordance with court decrees adjudicating the ground water rights within the basin. The non regulation of groundwater use resu lts in issues when there are competing surface water users that either abide by the riparian or appropriation doctrines. Well pumping depletes surface flows when the geologic conditions of conductivity exist between stream alluvium and well location.

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195 I n Kansas v Colorado (1985), the additional drilling and pumping of irrigation wells in Colorado, ( after the signing of the 1948 interstate compact between the two states ) resulted in Colorado paying approximately $35,000,000 in restitution/damages to Kansas The compact between Colorado and Kansas dictated no additional stream depletions at the state line after the signing of the compact. Using this example, there is evidence that well users in California maybe injuring riparian and prior appropriation sur face water diverters in instances where there is a hydraulic connection between streams and adjacent pumping wells. However with well users being unregulated and with no link legally to surface water users, via stream depletions and remediation of injur y, it is clear that conflict exists between these water users. If California were to enact legislation by defining tributary aquifers and making them abide by the rules of the prior appropriation doctrine, the surface water users would benefit. The ben efit to the surface water users would be the new requirement on the well tributary junior wells. Since the surface water users have priority dates back to the late he drilling of wells did not begin in earnest until the early to mid most wells are junior to the senior surface water users. This situation is similar to that of Colorado, in particular on the South Platte River in eastern Colorado, where the wel l users have had to join associations that have enough financial resources collectively to purchase replacement or augmentation water. If a Colorado well owner does not have augmentation water to replace injurious stream depletions caused by the pumping o f their wells on nearby streams, they cannot pump.

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196 N ew Mexico In New Mexico, the Office of the State Engineer is charged with administering the state's water resources. The State Engineer has power over the supervision, measurement, appropriation, and distribution of all surface and groundwater, including streams and rivers that cross state boundaries. Also, the State Engin eer is Secretary of the Interstate Stream Commission. (New Mexico State Engineer website) The Interstate Stream Commission is charged with separate duties including state complies with each of those basins, as well as water planning. inventories surface and groundwater withdrawals and depletions by category, county, and river basin. Also the Conserv ation Division maintains water use databases and analyzes crop, weather, and water use data. In addition, the bureau quantifies water requirements for irrigation and other uses and prepares technical reports for the water resources investigations and adju dication activities of the Water Resource Allocation and Litigation and Adjudication programs. The Water Resources Allocation Program (WRAP) within the Office of the State Engineer (OSE) is responsible for processing water rights applications, conducting the scientific research for making those water rights decisions, maintaining water rights records, and enforcing any conditions or restriction on water use. The OSE also measure stream flow, allocates the water within a stream system based on state water law, and regulates and control diversions. New Mexico also licenses all well drillers, inspects

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197 non federal dams, evaluates subdivision water supply plans submitted by counties, and promotes water conservation. Ibid. The statutory responsibilities of the Colorado State Engineer are similar in nature to that of New Mexico. There is one departure of responsibility and that is adjudication of water rights. In New Mexico, the State Engineer issues permits to divert water, whereas, in Colorado that respon sibility has been given; via Colorado state statute, to the judiciary branch of government, and in particular, to the seven water courts throughout the state. There is a water court for each of the seven major stream systems in Colorado. Another departure between New Mexico and Colorado deals with water planning. In Colorado, that responsibility has been directed, via statute, to the Colorado Water Conservation Board. In Colorado, the State Engineer administers decrees of the water court for both surface and groundwater. The State Engineer in New Mexico essentially assumes two additional responsibilities to that of the Colorado State Engineer, and those are water adjudication and water planning. In 2000, the New Mexico State Engineer, Mr. Tom Turney, identified in the December issue of the New Mexico Water Resources Research Institute that active river management, including measurement, management, and markets, as key components to effective program oversight. He was also concerned with unfunded fede ral mandates including minimum flows for the Endangered Species Act. Also, he stated New Mexico must be concerned with its overreliance with pumping from groundwater sources. Mr. Turney also advocated that water markets must be developed as an effective means of re allocating water. Ibid.

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198 In Colorado, the state judiciary adjudicates water rights and the Colorado Water Conservation Board generates state water policy and doctrine. In New Mexico, however, the State Engineer assumes responsibilities for b oth. In New Mexico, the average adjudication takes 13 month to complete, while in litigious Colorado, 3 years are needed to generate a water court decree. Whether in New Mexico or Colorado, water management is a complex science, requires time for adequate study and analysis, is constantly under attack from environmental activists, and is under ever increasing pressures from external forces including federal environmental mandates, population increases, business pressures, and most recently, climate change Both State Engineers have various and difficult responsibilities, which are critical for maintaining the qualities of life that are key attributes to both states. W yoming In Colorado, the state constitution declares water to be the property of the public, boundaries of the state to be declared to be the property of the state. ( http://seo.wyo.gov/home/about ) Because of that distinction, the Wyoming State Similar to Colorado, Wyoming follows the prior app ropriation doctrine and that putting water to a beneficial use is the underlying requirement for securing water rights in Wyoming. Ibid. industrial, power generation, recreationa l, stock, domestic, pollution control, in stream

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199 feet per second (cfs) for each 70 acres under irrigation. Ibid. A compilation of Wyoming law relative to water admi nistration is found in Wyoming Water Law a summary J. Brosz, May 2003. The following is a listing of pertinent information in the article: 1. The state engineer is the chief administrator of Wyoming wate rs. 2. The state is divided into four water divisions; Division 1 includes the North Platte, South Platte, Little Snake, and Niobrara river drainages. Water Division 2 includes drainages north of the Niobrara and North Platte river basins and east of the Big Horn Mountains. Water Division 3 Fork river drainages, and Water Division 4 includes the Green, Bear, and Snake River drainages. 3. A water division superintendent administers the waters in each division, and the four superin meet quarterly to adjudicate or finalize water rights, and consider changes in points of diversion, amendments, and other corrections. Ibid, p. 1 4. Since statehood in 1890, the only way to obtain a water right is by securing a permit from the state engineer. 5. or improvement of existing stream fisheries is a beneficial use of water that can be provided from natur al stream flows or from storage water. Ibid, p. 5 6. The first groundwater laws in Wyoming were enacted in 1945, amended in 1947, and replaced on March 1, 1958. In 1969, major amendments were enacted. Ibid.

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200 7. The same general procedures are followed to secure a groundwater right as are followed to secure a surface water right. 8. Under Wyoming water administration, a water or ground water right is considered satisfy the right.) 9. Supreme Court decrees, and one U.S. D istrict Court decree. Many of the river basins have established interstate commissions to ensure compliance with the allocat operate existing reservoirs. California Reservoir Re Operation Plans The California Division of Water Resources (DWR), since 2009, has developed reoperation strategies for their existing and future water reservoir facilities. (California Division of Water Resources, 2009 Water Plan Volume 2, Chapter 6 System Reoperation) m these 5. The driving forces behind this program are changes in water demand and climate change and the overall intent is to increase project yield. However, DWR rec ognizes that legal changes may be necessary. Ibid. 1) to address specific existing needs, 2) to improve operational efficiency and water

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201 supply reliability, and 3) to anti reservoir owners the benefits of reoperation may include changing the mix of uses; provide flexibility to respond to extreme hydrologic events such as flood, drought, or earthquakes, and to allow sy stem adaptation to future conditions that may result from climate change. Ibid. p. 6 11. There are, however, issues such as additional operational costs, reduced hydropower generation, and gaps in scientific knowledge and data. Ibid. p. 6 12. Competin g beneficial uses will make the transition controversial. In addition there could be operational constraints such as reservoir outlet capacity, storage volume, and pumping limits that my impact reoperation goals. Ibid. On page s 6 14 of the DWR reoperat ion report, the following listing of institutional arrangements and challenges include: gain certain benefits that may not be consistent with system reoperation objectives. Tr adeoffs and competing objectives of reoperation will be difficult to overcome given the scale of the water system due to the perception that there will be winners and losers in the process. rea of origin water rights, presents complications for change on a large scale. Contractual obligations for water deliveries largely constrain operations of many projects.

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202 Existing and changing environmental and water quality requirements may reduce the f lexibility for reoperation of the system. Flood rule curves presented in water control manuals mandate reservation of flood control space during the flood season. Changing water control manuals is a difficult and time consuming process. Coordinated operat ing agreements already govern operation of multiple projects. Changes in project purposes for federal projects will require authorization from Since integrating water resource management requires the collaboration of local, state, and federal agencies, regulatory action from these agencies may be required. Ibid. p. 6 14. California DWR recognizes initial and on going costs will be significant, since new monitoring systems, hydrologic models, decision support systems, and systems of data colle ction are required. Ibid. The next section provides an overview of a western state that relies on a permit system for allocating water resources. Whether a permit state such as Wyoming or New Mexico, or an adjudicatory state such as Colorado or California, a recent state supreme court decision could prove instrumental in either administrative scheme. The section below presents a summary of Bounds v New Mexico which was appealed and recently decided by the Supreme Court of New Mexico. Summary of Bounds v. New Mexic o, 2013 Typically, states that administer water under the prior appropriation doctrine, allow certain uses to be exempt from curtailmen t. In New Mexico, the state engineer

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203 are for small quantities of water and are not subject to administration. On July 25, 2013, the New Mexico Supreme Court issued it s decision in Bounds v. New Mexico. (Richardson and Dowelli, 2013) facts are not part a state or U.S. Constitution law. Ibid. In the present case, Bounds is a farmer with senior water rights and challenged the domestic well statute in New Mexico as unconstitution al because of alleged injury to his senior water right. According to Richardson and Dowelli, upheld if there are no circumstances under which the law could be constitut ionally Prior Appropriation and the Bounds Case The domestic well statute (DWS) in New Mexico requires the state engineer to issue a domestic well permit, without any further anal ysis, when an application is filed. Ibid. In New Mexico and other western U.S. prior appropriation states, the concept of Bounds is a farmer in southwestern New M exico and the water basin in which he resides, is fully appropriated and adjudicated. Ibid. Bounds and the New Mexico Farm and Livestock Bureau filed the lawsuit claiming the issuance of a domestic well for any applicant is unconstitutional and since the basin is fully appropriated, no excess water exists for a new user. By the state engineer issuing domestic well permits, the state is allowing people to get ahead in line, in front of senior water right holders. However,

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204 Bounds could not show or prove impairment. Nonetheless, the District Court ruled in favor of Bounds, however on appeal, the New Mexico Court of Appeals reversed; by the New Mexico Supreme Court and oral arguments were held in October of 2011. Ibid. Supreme Court of New Mexico Decision because the State Engineer must issue a well permit and (2) does the failure to provide notice prior to the issuance of codified this simpler permitting process as a policy choice, something that the New claim of violation of due process, the Supreme Court dismissed the claim, by finding Bounds was unable to show the DWS impaired his water rights and therefore he was unable to prove a deprivation of property. However, the opinion contained declarations that, in the future, may result in additional claims of injury by senior water right holders due to pumping of permitted domestic wel ls. In Slip Opinion, paragraph 45, Richardson actual impairment or impending impairment is shown. In that situation, an as applied challenge to the statute can also be Ibid.

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205 APPENDIX G MODFLOW GRAPHICAL OUTPUT Figure 3 1 Slide20.gpr MODFLOW results Injection Wells with Qin = 2 cubic feet per second (cfs) Figure 3 2 Slide30.gpr Results Injection Wells with Qin = 5 cfs

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206 Figure 3 3 Slide40.gpr Reverse Spillway with Qin = 7 cfs Figure 3 4 Slide50.gpr Reverse Spillway with Qin = 5 cfs, stores 51 acre feet at 5 days

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207 Figure 3 5 Slide60.gpr Reverse Spillway with 6 cells and Qin = 5 cfs and Dispersion Piping Qin = 5 cfs Surface water ponds at 2.5 days therefore Reverse Spillway max imum flow in controls Figure 3 6 Slide80.gpr Pump Out Scenario Dry Cell at 50 acre feet pump out point

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208 Figure 3 7 Slide90.gpr Pump Out at 1 cfs 35 days to get dry cell 70 acre feet pumped Figure 3 8 Slide115.gpr Optimum Piping Configuration Qin = 5 cfs

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209 Figure 3 9 Slide1 6 1.gpr Six pumps @ 2 cfs each pumping out cells