Kuiper, C. J.

English

University of Denver

Denver Journal of International Law & Policy Volume 6 Number 3 Special Issue Water Needs for the Future Article 21 May 2020 Colorado: The Problem of Underground Water C. J. Kuiper Follow this and additional works at: https://digitalcommons.du.edu/djilp Recommended Citation C. J. Kuiper, Colorado: The Problem of Underground Water, 6 Denv. J. Int'l L. & Pol'y 455 (1976). This Article is brought to you for free and open access by the University of Denver Sturm College of Law at Digital Commons @ DU. It has been accepted for inclusion in Denver Journal of International Law & Policy by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. Colorado: The Problem of Underground WaterC. J. KUIPER*Probably one of the most difficult areas to resolve in waterlaw is the right to appropriate and put to beneficial use under-ground water. Because of the short and seasonal supply of sur-face water in many parts of the world, including the state ofColorado, we have no alternative but to cope with the problem.If existing economies are to be enhanced, or even preserved,underground water is probably the last frontier for water re-source conservation and development in the vast arid andsemiarid areas of the world. The ever-increasing populationgrowth, need for food, fiber, and essential exploitation of natu-ral resources, and the preservation of the environment for adecent quality of life are dependent on adequate water sup-plies. The impetus for maximization of the beneficial use ofavailable supplies demands treatment of underground water byimaginative and innovative legislation designed to provide theframework for sound development.Promulgating and implementing laws on the use of under-ground water is a relatively new and extremely challengingfield. Without a thorough knowledge of the physical character-istics and ramifications of effect, an ill-advised groundwaterlaw can be a total disaster.The first step in devising a groundwater law must be tocategorize this water into one or more of the several types anddeal with each category as a separate entity when and if applic-able. Underground water can be considered under two broadgeneral categories: tributary to a surface stream and non-tributary.Even this broad categorization must be approached withcaution. Judgment based on policy and on local situationsmust be made, because from a purist's viewpoint there is nosuch animal as non-tributary groundwater. The purist main-tains, and rightly so, that there is no magic source of groundwa-ter. It all derives from surface sources, whether it be precipita-tion, stream percolation, or recharge from surface application.In Colorado, considerable work is still necessary on the* Colorado State Engineer.456 JOURNAL OF INTERNATIONAL LAW AND POLICYgroundwater law. In the area of non-tributary groundwater,further dissection is necessary for proper definition and treat-ment, as follows: (1) transient water-groundwater with littleor no hydraulic connection to surface streams and/or little orno utilization of surface water; (2) water in bedrock aqui-fers-not hydraulically connected to surface streams; (3)perched aquifers; (4) closed basins-isolated by geological for-mation from either surface or other groundwater; and (5) watertrapped in solid rock zones. Generally speaking, these non-tributary waters are being or soon will be mined, causing thewithdrawal of water in excess of the natural recharge rate. Thepolicy of the State is to exploit these waters, realizing that atsome future date we will reach a point of no return. The solu-tion to this seemingly short-sighted policy would be a rathernebulous hope that technology might provide economically-justifiable recharge programs before the axe falls.Transient water with little or no hydraulic connections tosurface streams was given special consideration in the statute,under the title, "Designated Groundwater." Seven basins nowexist which have been designated in eastern Colorado by theColorado Groundwater Commission and are under the jurisdic-tion of the Commission rather than the courts. Although appel-late recourse from any decision of the Commission is providedfor in the district courts, I would call your attention to thepolicy of the Commission on mining groundwater. Each appli-cation for a well permit is analyzed on the basis of permitting40 percent depletion of the saturated thickness of the aquiferwithin a circle three miles in radius and a time period of 25years.Groundwater, as defined in (2), (3), (4), and (5) above,might be recategorized as static rather than transient water,although each has its own peculiarities and its own uniqueproblems. Some bedrock aquifers are considered as non-tributary because historic depletion has caused declines in thestatic water tables which would take centuries of natural re-charge to restore to their past hydraulic connection with sur-face water. These bedrock aquifers were treated separately inthe statutes, with the proviso that the State Engineer maygrant a well permit to an applicant if the annual withdrawalof water did not exceed 1/100 of the recoverable water underly-ing his property: a 100 year aquifer. This was designed to an-VOL. 6:455UNDERGROUND WATERswer the question of adequacy of the water supply for subdivi-sion development dependent on these aquifers. Although thismay not be in strict compliance with the constitutional doc-trine of prior appropriation, expedience often dictates policy,and this may be a good example.Numbers (3), (4), and (5) above would probably be bestdefined as static aquifers which are "a little bit" tributary,since natural recharge does occur, but at a rate less than therate of withdrawal. I suppose if there is a condition being "alittle bit pregnant," then we can have aquifers which are "alittle bit tributary." But again, expediency dictates the terms.The hazards involved in applying the doctrine of prior appro-priation and the right to divert unappropriated water to theseconditions are obvious, especially for subdivision development.The ramifications of circulation of water in a closed system bywell withdrawal and recharge with sewage effluent boggles themind. Our legislature has not addressed this rather nauseousproblem as yet.The general category of tributary water superficially pres-ents fewer problems than non-tributary groundwater if onewere to adopt a simplistic approach under the priority systemand order all tributary wells to cease and desist diverting, be-cause of injury to senior vested rights. Unfortunately, the reali-zation that diversions of tributary groundwater eventuallydiminish surface flows, to the injury of prior vested rights, wasrecognized only after the fact. In the interim, a substantialeconomy has developed around the use of this groundwater.The legislative body is thus faced with closing the barn doorafter the horses have been stolen.In Colorado, this sin of omission was thought to have beenatoned for by declaring a policy to integrate surface andtributary groundwater, i.e., conjunctive use. The more knowl-edgeable legislators recognized the fallacy of this atonementbecause there simply was not enough water available withoutsome innovative management plan. The policy statement fur-ther proclaimed that the doctrine of prior appropriation wouldbe honored and the economy dependent on groundwater wouldbe preserved. This was to be accomplished, despite the over-appropriated water supply, through the provisions requiringplans of augmentation to be reviewed by the State Engineer forapproval or help in devising a viable plan, and through another1976458 JOURNAL OF INTERNATIONAL LAW AND POLICYstatute granting the State Engineer authority to adopt rulesand regulations.By consulting Mr. Webster's published works, I renewedmy understanding of augmentation as meaning increasing, es-pecially in size or amount. I knew I should have been moreattentive in advanced mathematics because with an over-appropriated river I kept adding zero to not enough and comingup with not enough.The best answer had to be better management of the re-source. That included converting the root of the problem-tributary aquifers-from a culprit to an asset. Starting withthe general concept that underground storage is far superiorto surface storage, the solution seemed to be to divert waterfrom this underground reservoir during times of deficient sur-face supplies and to recharge that reservoir during times ofsurplus surface supplies.The next question was who would pay the bill for rechargeprojects and pumping back to the river? Quite obviously thebeneficiaries of the project are the underground water appro-priators who are junior to injured vested rights. Probably themost Herculean task of the entire exercise was to convince wellowners, especially those most remote from the river, that (1)their pumping affected the surface flow, (2) they did not ownthe water underlying their property, (3) they were injuring sen-ior vested surface rights, and (4) they had to finance remedialmeasures for that injury.The difficulty of this public relations task was aggravatedby procrastination of previous legislatures and polarization ofdiametrically opposed positions by well owners and surfaceappropriators, almost to the point of anarchy. We then organ-ized a task force of experts in the fields of geology, hydrology,and administration to conduct a series of well-advertised infor-mational meetings along the entire reach of the South PlatteRiver Basin. Hostility was the name of the game at the earliermeetings. However, our bullet-proof vests received nary a dentafter the well owners understood: (1) the interaction betweensurface and groundwater, (2) the constitutional doctrine ofprior appropriation, (3) the new law, (4) our mutual problems,and (5) our willingness to help them devise ways to remedyinjury at a reasonable cost. Their cooperation since that timeVOL. 6:455UNDERGROUND WATERhas been remarkable. It certainly brought home to me theadage that a person's greatest fear is that of the unknown.The culmination of our meetings in the South Platte RiverBasin was a general meeting to discuss ways and means oforganizing some kind of legal entity to implement the plans forremedying the injury to prior rights. The result was a non-profit corporation under the name, "Groundwater Appropria-tiors of the South Platte, Inc.," G.A.S.P. for short. Member-ship in the corporation is voluntary with a board of directorselected by members from the several districts. The board hasdone an outstanding job of furnishing replacement water to theriver at a price to the members of about 25-35 cents per acre-foot of diversion. How can the corporation provide water atsuch a low rate, when the price of water in the South Platte inparticular is inflated beyond all comprehension? A carefulanalysis of the law will answer that question. Groundwaterappropriators are required by law to remedy any injury onlyduring times that an injured senior right is demanding waterand only in the amount of the injury occurring at that time.The first function in determining injury is consumptive usederived from, in the case of irrigated agriculture, irrigationefficiency. That water which is not consumed percolates backto the aquifer and does not constitute injury. The next functionis timing of effect, which varies with the distance from theextreme channel, among other parameters. Given the physicalcharacteristics of the aquifer, distance from the stream, andrate of pumping the lifetime and amount of effect can be deter-mined by computer programming for any number of wells. Thisinjury, at that given point in time, must be remedied when andif a downstream senior is demanding water. With the timeframe of demand narrowed down to a small percentage of theyear, the total injury is again reduced by that percentage fac-tor. The end result is that an acre-foot of replacement watergoes a long way toward remedying the net injury of consider-able groundwater diversions.Two projects have been completed that demonstrate thecapability of utilizing groundwater storage for replacementwater, one in the South Platte River and one in the ArkansasRiver, both of which have been very successful. The lowerreaches of the South Platte ditch had been abandoned forsome time because of excessive seepage losses, and a small1976460 JOURNAL OF INTERNATIONAL LAW AND POLICYholding pond was also abandoned for the same reason. Thatwas the very thing we were looking for, the means to rechargethe aquifer during times water not demanded by a senior wasavailable in the river. In cooperation with other agencies thelower reach of the ditch was rehabilitated and water was di-verted into the pitch and pond during periods when there wasno call on the river. Instrumentation of the recharge area re-corded the effect on the water table to ascertain the amountof recharge attributable to the project. The cost accountingindicated that this water in storage, and available for diversionduring the following irrigation season, cost about $1.00 peracre-foot when the minor capital cost for culverts, and so forth,was disregarded.In the lower Arkansas, wells were constructed along theBuffalo Canal to pump replacement water into the canal dur-ing times when the canal would have demanded curtailment ofupstream junior rights, namely, wells. The first year of opera-tion happened to be one of the driest on record. These wellsprovided water to the Buffalo Canal during the most criticalpart of the season, saving crops along the canal estimated tobe worth about $225,000.00. This benefit was accrued in oneyear. With a construction cost of some $70,000.00, it more thanpaid for the project in the first year of operation. Further, themember wells of the Lower Arkansas Water Management Asso-ciation, which was the sponsoring entity, were permitted topump without restriction and grew crops also valued at manytimes the cost of the project. I had to contract as State Engi-neer with the Four Corners region in order to get this projectbuilt as a demonstration project, and the State of Coloradoowns it for five years, at which time it will revert to the owner-ship of the association.Other proven means of remedying injury include the pur-chase of reliable surface water rights and storage water, trans-mountain diversions for release to the streams, changes inpoints or alternate points of diversion with the replaced surfaceright released to the stream, and use of non-tributary devel-oped water augmenting the stream.In summary, good management planning solves many ofthe problems of the State of Colorado and other arid and semi-VOL. 6:4551976 UNDERGROUND WATER 461arid areas of the world. Good management must include maxi-mum utilization of groundwater in conjunction with surfacewater.

Colorado: The Problem of Underground Water

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Colorado: The Problem of Underground Water

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