"When the law defies the laws of nature, the law is an ass," joked Colorado Supreme Court Justice Greg Hobbs. Hobbs, a water lawyer before joining the high court 11 years ago, writes most of the decisions dealing with water law for the court. Hobbs described how Colorado water law evolved by 1965 to recognize that large areas of groundwater in the state are connected to streams. The exceptions are designated groundwater basins and the deep aquifers of the Denver Basin that are not connected with any surface supplies. "Just as a ditch is a diversion structure, a well is a diversion structure," Hobbs said. "If you're in a low-water year, you're subject to curtailment." A well permit is just permission to drill for the water, and water obtained from the well is subject to the same requirements for beneficial use as surface water, he explained.
A subsequent law passed in 1969 introduced the concept of augmentation, which requires replacement water to the stream for water pumped out of priority. In the years after 1969, the Legislature passed laws that gave authority to the state engineer to implement temporary augmentation plans, but still requiring court filings. "The state engineer said in approving supplemental supply plans, you've got to go into court. People did not follow suit," Hobbs said. Supreme Court cases in recent years ruled the State Engineer cannot issue supplemental supply plans year after year if users do not file for augmentation plans in courts. Those court decisions resulted in the curtailment of agricultural wells in the South Platte basin last year.
Denver lawyer Steve Sims explained Aurora's Prairie Waters Project, which proposes to pump reclaimed return flows into a well field at Broomfield and pumping it back to a treatment plant at Aurora. The underground storage, located on farms Aurora bought, will be confined by impermeable barriers. "It's not so much storage, a giant sand filter to clean the water," Sims said...
Colorado Springs lawyer Sandy MacDougall said the rights of landowners on top of proposed underground reservoirs needs to be considered. Changing water quality, moving water under land or changing surface flows all need to be considered, MacDougall said. "Don't allow the water to pass through and cause damage to the land," MacDougall said. "If you're bringing these plans forward, don't harm anyone, because I think they'll sue you if you do."
