Wells that pump water from underground aquifers deplete water flowing in nearby rivers and streams. Colorado farmers in certain parts of the state use wells to pump large quantities of underground water for irrigation. However, other users who had pre-existing surface-water rights on nearby streams have complained that these wells drain the river and injure their prior vested water rights. Normally, surface water users with prior rights can require more junior users to stop appropriating until the senior user has diverted her full right. However, Colorado presumes that wells in certain districts-called designated basins-do not injure nearby surface streams. Still, to balance the rights of groundwater and surface water users, Colorado statutes for many decades have permitted surface water users to rebut this presumption, arguing that designated basin wells do in fact impact nearby surface streams, and thus that the state should redraw the boundaries of a designated basin to exclude misclassified wells. Those procedural protections were swept away when, in 2010, the Colorado legislature passed Senate Bill 52. That measure essentially prevents surface water users from bringing an action to de-designate a basin or to exclude particular wells from a designated basin. This Comment argues that Senate Bill 52 disrupts the balance between groundwater and surface water users at a time when the lagged effects of well pumping are depleting some surface streams. This Comment maintains that Senate Bill 52 is not only bad policy, but that it violates the Colorado Constitution's Prior Appropriation Clause and the United States Constitution's Due Process Clause. The Colorado Supreme Court should overturn Senate Bill 52 or the state legislature should repeal it. However, the Comment concludes that, instead of simply reverting to the previous scheme, the legislature should enact a more balanced approach modeled on recent conjunctive use legislation that has proven effective in other parts of the state.
Ari J. Stiller-Shulman,
No Seat at the Water Table: Colorado's New Groundwater Basin Statute Leaves Senior Surface Rights in the Lurch,
U. Colo. L. Rev.
Available at: https://scholar.law.colorado.edu/lawreview/vol84/iss3/6