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Show COLORADO 699 In regard to this legislation, the Colorado Supreme Court in a 1968 case said, among other things: Regulation of wells in the Arkansas Valley as contemplated by the 1965 act, in order to be valid and constitutional, must comply with the following three requirements: (1) The regulation must be under and in compliance with reasonable rules, regulations, standards, and a plan established by the state engineer prior to the issuance of the regulative orders. (2) Reasonable lessening of material injury to senior rights must be accomplished by the regulation of the wells. (3) If by placing conditions upon the use of a well, or upon its owner, some or all its water can be placed to a beneficial use by the owner without material injury to senior users, such conditions should be made. There is a temptation to be more definitive as to these require- ments, but in doing so we would be usurping legislative and executive functions. We must confine ourselves to a few rulings on constitutionality and to only broad statements as to any possible future legislation and administration.188 This 1965 legislation was repealed after the enactment of the 1969 act discussed below.189 This legislation is discussed in Note, "A Survey of Colorado Water Law," 47 Denver L. Jour. 226, 324-327 (1970). lttFellhauer v. People, 167 Colo. 320, 447 Pac. (2d) 986, 993 (1968). The court held that a water division engineer, who acted without any written rules or regulations and without any prescribed guidelines in shutting off only 39 wells out of the 1,600 to 1,900 wells pumping more than 100 gal. per min. in the area that affected the stream, in his attempted enforcement of the 1965 legislation had proceeded discriminatorily in violation of the due process clause of Colo, const, art. II, § 25, and the equal protection clause of U.S. Const, amend. XIV. 447 Pac. (2d) at 991-993. This case was distinguished in a later case dealing with other Colorado legislation, discussed in note 210 infra. In this case, the court inter alia stated, "As administration of water approaches its second century the curtain is opening upon the new drama of maximum utilization and how constitutionally that doctrine can be integrated into the law of vested rights. * * * "Colorado Springs v. Bender, 148 Colo. 458, 366 P. 2d 552 [1961], might be called the signal that the curtain was about to rise. * * * * * * * "* * * we have refrained from ruling at this time upon issues which were presented and which involve the following four matters: "1. Whether the term 'subsurface channel' is sufficiently definite. "2. Establishment of priorities to unadjudicated wells. "3. The right to uplift. "4. The duty of a senior user to pump in order to satisfy his surface decree." 447 Pac. (2d) at 994. 189Colo. Laws 1969, ch. 373, § 20, p. 1223, declared that this legislation was "amended as set forth in sections 148-21-34, 148-21-35 and 148-21-36" of the 1969 act. Colo. Laws 1971, ch. 372, § 3, p. 1332, expressly repealed this 1965 legislation. |