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Show COLORADO 703 The 1969 legislation directed the State Engineer and division engineers to administer, distribute, and regulate the waters of the State in accordance with the constitution and laws of the State.203 A subsequent amendment added specific provisions relating to the correlation of rights to surface and tributary ground waters.204 203Id. § 148-21-34. In 1971, the Colorado Supreme Court, without considering the 1971 amendment discussed in note 204 infra, upheld the validity of the rules and regulations established in 1969 for the South Platte Basin. Kuiper v. Well Owners Conservation Assn., 176 Colo. 119, 490 Pac. (2d) 268 (1971). The court inter alia indicated that the rules, requirements, and factors set forth in Fellhauer v. People, 167 Colo. 320, 447 Pac. (2d) 986 (1968), discussed at note 188 supra, had been adequately followed. The court said, inter alia: "In Fellhauer, we attempted to sound the note of a new era in the utilization and optimal use of water. It appears to us that the General Assembly reacted favorably to that attempt and in turn sought to promote in detail the general thought of Fellhauer. We have the same view of the acts of the State Engineer. We suggest that there is a slight indication of a feeling upon the part of the plaintiffs and on the part of the trial court that changes should not be required in the operation of wells on the Platte River. There must be change, and courts, legislators, the State Engineer and users must recognize it. We recognize that future research and testing may prove erroneous some of the things that we found were predominately shown in the record. By the same token, further research and testing will not only result in correction of past mistakes, but also will lead us closer to the goal of minimal waste of water." 490 Pac. (2d) at 283. 204Colo. Laws 1971, ch. 372, § 2, p. 1331 states: "(1) * * * It is the legislative intent that the operation of this section shall not be used to allow ground water withdrawal which would deprive senior surface rights of the amount of water to which said surface rights would have been entitled in the absence of such ground water withdrawal, and that ground water diversions shall not be curtailed nor required to replace water withdrawn, for the benefit of surface right priorities, even though such surface right priorities be senior in priority date, when, assuming the absence of ground water withdrawal by junior priorities, water would not have been available for diversion by such surface right under the priority system. The state engineer may adopt rules and regulations to assist in, but not as a prerequisite to, the performance of the foregoing duties. "(2)(a) In the adoption of such rules and regulations the state engineer shall be guided by the principles set forth in Section 148-21-35(2) and by the following: "(b) Recognition that each water basin is a separate entity, that aquifers are geologic entities and different aquifers possess different hydraulic characteristics even though such aquifers be on the same river in the same division, and that rules applicable to one type of aquifer need not apply to another type. All other factors being the same, aquifers of the same type in the same water division shall be governed by the same rules regardless of where situated. "(c) Consideration of all the particular qualities and conditions of the aquifer. "(d) Consideration of the relative priorities and quantities of all water rights and the anticipated times of year when demands will be made by the owners of such rights for waters to supply the same. "(e) Recognition that one owner may own both surface and subsurface water rights. "(f) All rules and regulations shall have as their objective the optimum use of water consistent with preservation of the priority system of water rights. |