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Show 706 GROUND WATER RIGHTS IN SELECTED STATES * * * * The term "designated ground water" is that ground water which in its natural course would not be available to and required for the fulfillment of decreed surface rights, or ground water in areas not adjacent to a continuously flowing natural stream wherein ground water withdrawls have constituted the principal water usage for at least fifteen years preceding January 1, 1965; and which in both cases is within the boundaries either geographic or geologic, of a ground water basin.211 district court were in agreement that a mining condition exists in the Northern High Plains Designated Ground Water Basin. The commission has determined that proper use of the ground water resource requires that mining be allowed to continue. However, the maximum allowable rate of depletion, at least when considering applications for permits to drill new wells, has been set at 40% depletion in 25 years. * * * " Fundingsland v. Colorado Ground Water Comm'n, 171 Colo. 487, 468 Pac. (2d) 835, 839 (1970). In the latter regard, see the further discussion of this case in note 216 infra. The court added that "If the plaintiff were permitted to proceed on his theory of 'unappropriated water' and pump water from his proposed well until such time as it was no longer economically feasible to withdraw water from the acquifer, then no subsequent regulation of his pumping could protect senior appropriators and all pumping from the basin within the area of influence of the plaintiffs well would have to cease until a reasonable pumping level was restored through the slow process of recharge. This is not the concept of appropriation contained in the statute, and not the one this court will follow. "When as in this case, water is being mined from the ground water basin, and a proposed appropriation would result in unreasonable harm to senior appropriators, then a determination that there is no water available for appropriation is justified." 468 Pac. (2d) at 839-840. The court also said: "The language of this court in Fellhauer v. People, Colo., 447 P. 2d 986 [(1968), discussed at note 188 supra] to the effect that wells in the Arkansas Valley could be regulated only in compliance with reasonable rules, regulations, standards and a plan established by the state engineer prior to the issuance of the regulative orders pertained to the duty of the state engineer to administer surface water and underground water tributary thereto under 1965 Perm. Supp., C.R.S. 1963, 148-11-22. In this case we are concerned with the management of underground water in designated ground water basins under 1965 Perm. Supp., C.R.S. 1963, 148-18-1 et seq. Our interpretation of the statutory requirements in Fellhauer does not apply here. The judgment of the district court is in accordance with the requirements of the appropriate statute and effectuates the policies of ground water management expressed in that statute." 468 Pac. (2d) at 840. The court noted that the plaintiff had not contested the validity of the 1965 act itself but had argued that the denial of his application for a permit deprived him of his constitutional right to appropriate. 468 Pac. (2d) at 836. The court also said, "The plaintiff calls our attention to Article XVI, Section 6 of the Colorado Constitution which provides: The right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied.' We find, however, that the record clearly supports the finding that there is no unappropriated water within the three mile circle surrounding the plaintiffs proposed well site." 468 Pac. (2d) at 839. mColo. Rev. Stat. Ann. § 148-18-2(3) (Supp. 1965), amended, Laws 1971, ch. 367, § 1, p. 1311. |
