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Law Offices of Ronald W. Rutz
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August 9, 1999: Well Augmentation

Q: I was at a nice restaurant for supper last week but unfortunately sat close to an older gentleman who was loudly pontificating about stupid attorneys, engineers, judges, and you name it, especially involving water well augmentation. The little I know about the subject suggested that "Mr. Ventor" was all wet. Would you turn on the fountain of information to calm the troubled waters of my mind so that the elixir of facts can gush forth to soothe my parched reservoir of knowledge?

A: It would be fun to sit at the same table with Louis Rukeyser (Wall Street Week) and you and listen to the two of you pun away. I bet you could hold your own.

Initially I do want to extend my apologies to my water friends and colleagues because the following will be a vastly oversimplified explanation. But to understand well augmentation, a review must be made of the basics of traditional Colorado water law.

There is not enough water available for everyone who wants to use it. Under the Colorado Doctrine, water is allocated by having everyone form a line, each place in line being based upon the chronological order when water was first used, starting with the oldest and then moving back up the line to the newest at the end. Then going down the line, water is disbursed based upon predetermined amounts until the water runs out.

So-called tributary water has been found by the Court to be connected, whether it is above ground (rivers, lakes, puddles, etc.) or below ground (general ground water, aquifers, etc.). Think of a sheet of water where removal of water will eventually affect water available in the rest of the sheet. Thus, pumping water from a well means that at some point in time in order to replace the removed water, the surrounding water must flow in to fill the void created by pumping.

Ergo, if a Johnny-come-lately punches a hole in the ground and uses tributary water, he or she is in effect crowding to the front of the water line, taking water from people already in line to use that common sheet of water.

Of course the rub in all of this complexity is for a judge to balance all the tangible and intangible factors such as distance, time, porosity (water flowability) of the soil, which can vary both vertically and horizontally, different priority users peppered all together and not in a straight line, waste water (used) returning to rejoin the sheet of water, etc. Now this really turns into a Rubic's cube. Often the Solomon-like decision, if there is any doubt, is to maintain the status quo for those in the line ahead of the one seeking to affect the senior users.

But if a well user replaces the water for those ahead of him or her in the line (e.g., buying water for them), then use of the well would be permitted. The easiest way, or sometimes the court required way, would be to join an underground water users association which already has worked out all of the legal details and arranged for any required substitute water to be provided, all as determined by the Water Judge. But for many, the costs of being part of the association means that only a Pyrrhic victory was achieved.

So do not be too hard on the dining curmudgeon. All of the groups he was berating probably have felt, at one time or another, just as he does. This can be a very frustrating area of the law, especially if legal arguments end up "sucking air" and the desired goals "dry up" (sorry, I could not resist a little well augmentation humor of my own).

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