Groundwater Oral History Project Conducted by the
Colorado State University Water Resources Archive Interviewee: Andy Jones
Interviewer: Hailey Groo
Interview date: September 14, 2020
Transcript created by: Hailey Groo with edits by Patricia J. Rettig Interview funded by: Robert Longenbaugh
Abstract:
0:18 Andy Jones describes his Colorado water law experience. Recalls his time at Colorado State University and Vermont Law School, beginning his career at the firm of Kim Lawrence, lobbying the State Assembly, teaching, and writing a book with Tom Cech.
02:52 Describes his experience with environmental law and history at Colorado State University and Vermont Law School, and how it led him to a career in water law.
06:26 Describes greatest career accomplishment. Cites the 2002 Well
Augmentation Subdistrict of the Central Colorado Water Conservancy District case. Explains how the case helped usher in an era of greater understanding about the interaction between the alluvial aquifer and the river in Colorado water law.
08:34 Recalls the 2002 WAS case also as his greatest career failure due to the temporary shutdown of wells. Describes learning hard lessons about influencing policy change as a young lawyer.
12:38 Describes the nature of Colorado Water Court, the opposition and appeals process, and the resistance to drastic change by the State Assembly. Recalls persistent opposition to his work by junior water rights groups.
18:33 Recalls the five most impactful Colorado groundwater cases in his career. Three cases related to tributary groundwater: the Empire Lodge case in 2002, the rules case in 2003, and the WAS case in 2009. Recalls two cases related to designated groundwater: the Goss case in 2000 and the Gallegos case in 2006. Describes the issues with de-designating a groundwater basin.
31:53 Explains the legal definitions of tributary, non-tributary, and not non-tributary groundwater. Explains determination of water rights findings and recharge rates in the Denver Aquifer Basin. Describes the difference between the General Assembly and water court, and their difference in policy creation. Outlines how water is designated within basins and provides unique examples within Colorado.
44:13 Describes the tension between the State Engineer and the General Assembly. Explains their role in creating and implementing Colorado
groundwater law.
45:37 Describes the ongoing issues in Colorado groundwater. Cites the need for more data collection, the legislative lag behind data, the need for flexibility in water rights use, and a focus on sustainability.
47:16 Provides advice for future generations of Colorado water professionals to focus on integrating property-based usufructary rights with a systems-based, data-driven administration in order to maximize water use. Explains the importance of math and science in water law education.
The focus of this project and these recordings is to capture the knowledge, stories, and opinions of key Colorado groundwater experts to learn about experiences, insights, and information that may not be recorded or documented anywhere else.
Interview Transcript:
Hailey Groo [00:00:00] The date is Monday, September 14th, 2020. I am in Windsor, Colorado, with Andy Jones. Interviewer is Hailey Groo with Colorado State University Water Resources Archive. Andy, please briefly describe who you are and your background in Colorado
groundwater.
Andy Jones [00:00:18] Sure. I've been practicing in Colorado water law for about 22 years. All of it in Northern Colorado. I was a native of Fort Collins and I went to CSU. I got an
undergraduate degree in history. And then I went on to Vermont Law School to get my law degree and came back here. And within a year or so, was practicing with Kim Lawrence, a water lawyer from Greeley, a really prominent water lawyer, a good mentor for me. And so in the course of my career, I happened into Kim's practice at a time when it was just exploding with groundwater issues. The year was 1999. Within a couple of years of that, we had a, just a real sort of cataclysmic change in groundwater administration along the South Platte River, which was Kim's primary client base. And so I soon found myself in the midst of literally dozens and dozens of groundwater cases. And so I spent about 10 years litigating those cases. And after that, that led to some policy work and legislative work. And so I spent five or six years working on reform pieces, I think, related to that legislation and other things in the General Assembly. I was not in the General Assembly. I was lobbying the General Assembly on water rights issues. And also during that time period, I started teaching. I wrote a book with Tom Cech on Colorado water rights for non-lawyers. And so throughout my career, I've had a chance to really practice in all phases of groundwater, from litigation to policy work in the General Assembly and also quite a bit of work with the executive branch, the State Engineer and others. So that's kind of my background. I was sucked into groundwater law at the beginning in 1999, and I didn't know it at the time, but it was going to play a really big part of my career.
Hailey Groo [00:02:43] Can you talk a little bit more about how did you choose to enter your profession and what led or drew you to a career related specifically to Colorado water? Andy Jones [00:02:52] Sure. Yeah, I was very interested in politics and government issues in high school. And like a lot of people, I had a high school teacher at Rocky Mountain High School in Fort Collins. Mr. Michalski, also the football coach who was extremely enthusiastic about policy issues. And I think it was probably his influence that led me to want to study history. I was married when I was 19 as an undergraduate, and I was graduating with a degree in history and realized that I was going to have to make a living. I had three kids at the time. And so law school sort of opened itself up as an opportunity. And I had an interesting experience with that, I think, at CSU. I was always very environmentally oriented and I guess sort of on the liberal side of things, I would be the one in class who would raise my hand and say, hey, but what about the environment? And this was like early 1990s. And so it wasn't as popular a topic, let's put it that way.
I went to Vermont Law School and I found an entirely different environment. The law school there was populated by folks who had helped write the major environmental legislation in the 70s, Clean Air Act, Clean Water Act. And I found myself in those classes being extremely conservative. And I was the one that would raise my hand and say, hey, but what about the ranchers in Colorado? What about the farmers? And so that was a good education and good balancing of things.
I went into law school wanting to practice in environmental law. I was going to be an
thought that was the highest priority. After experiencing all of that, I came out a lot more moderate. And for family reasons as well. All our family is here in Colorado, we moved back to Colorado and I discovered water law, which is really a combination of three things that I really love. There's a big science aspect of water law. There is a historical aspect to it. And then there's also a policy aspect. So it's a very unique area. And I found that water law gave me the opportunity to engage in those kinds of activities and also make a living as an attorney. And like I said before, I had the good fortune of initially being hired by Kim Lawrence in Greeley. And that really charted the course of my career there. It wasn't easy, though. I sent out all kinds of
resumes. You know, I would get cases from the water court with the notification list and send my information to all of the firms, you know, who were involved in the cases, figuring they were the right ones to do it. And Kim was the only one who sent my resume back. Six months later, I sent it to him again. And he hired me at that time. He says he doesn't remember it. I do. So.
Hailey Groo [00:06:19] What do you feel was your biggest career accomplishment?
Andy Jones [00:06:26] You know, I think, ironically, my biggest accomplishment was related to kind of my first experience with groundwater. And that is in 2002, we had this groundwater crisis on the South Platte, and the change in administration. Whereas the wells had been operating under substitute water supply plans for about 20 years or more. There was a change in the law. We’ll talk more about that later. And I was thrown into the position of representing the owners of thousands of wells. And the threat was that they would be curtailed and their livelihoods, their businesses for several generations, their farms depended on the continued operation of these wells. So as a very young attorney, two or three years into practice, Kim and I had too many cases for him to do them all. And I was assigned a big chunk of those wells in crisis. And I think the biggest accomplishment of my career is with the support of Central Colorado Water
Conservancy District, who was really behind us all the way. We were able to keep those wells operating. And it wasn't easy. But along the way, we learned an awful lot about groundwater law. We spurred some changes in Colorado law and really, I think, helped usher in an era of greater understanding about the interaction between the alluvial aquifer and the river and kind of set the stage for the next chapter in Colorado water law. So that case was the principal case there. There were many of them, but the principal one was for the Well Augmentation
Subdistrict of Central Colorado Water Conservancy District. And we call it by the acronym WAS. Which is unfortunate at the time. But that's the name that stuck. So the WAS case I think was my biggest accomplishment.
Hailey Groo [00:08:34] What do you feel was your biggest career failure and what did you learn from it?
Andy Jones [00:08:38] Right. Yeah. You know, I think my biggest career failure, ironically, was the same as my success. And that is the WAS case. The 03CW99 involving the wells on the South Platte River. So in that case, we entered into the case with little to no chance of keeping those wells operating. We had an augmentation plan that had about 30,000 acre-feet a year of depletions, and we had just under 950 acre-feet per year of firm replacement. And so things were pretty bleak for the folks that owned those wells. And we were successful in obtaining a decree that would allow them to function. And as it turns out here, in retrospect, you know, 15 years later, it works very well. They're pumping more, or as much, or more than ever, and more than some of the longer established augmentation plans. So it was a good decree. I think. But the biggest failure was that they had to shut down for a time. There was not continuous operation. They shut down in 2004, 2005, and were shut down for a number of years. A
tremendous hardship on them. And, you know, that was hard on everybody. That was difficult to have invested so much in that litigation and to see them essentially have to continue to pay
these really high assessments to keep the plan going and pay for past depletions, post-pumping depletions, but being unable to make any new depletions. A heartbreaking time for them. There were quite a few farms that didn't make it because they either dropped out of the plan, they couldn't afford the assessments or they couldn't irrigate and they had to leave. And that was very, very difficult for me.
I think that what I learned there is that as a young attorney, I was very optimistic about changing the system. We introduced a lot of new ideas into that WAS case. We were very creative with trying. We had to be creative. That's all we had. And in particular, we introduced the concept of large-scale groundwater recharge as a way to support the continued operation of the wells. And it wasn't a brand new idea, but the scale at which we implemented it, and some of the subtleties of it were new. And I think I was overly optimistic about the court, the court's receptiveness to that and the water community's receptiveness to that. And what I learned is that as frustrating it is as it is for those desiring change, a big complex system like our water rights system is highly resistant to change. And when it changes, it changes slowly, incrementally over time. It's a huge ship to change the course. And I think what I learned from that is that if you want to change the course of policy, if you feel like there are some things that need to change, you're going to want to do that incrementally.
We were sort of forced in trying to make one big pivot in this critical case. And the court made a partial pivot that left our clients without water for a number of years. Ultimately, it was
successful. The ideas took root. And it's kind of the basis of of the way we operate the South Platte now. But that was a difficult thing.
Hailey Groo [00:12:34] What other sorts of opposition have you encountered in your work? Andy Jones [00:12:38] Well, you know, the way water court is set up, we have the publication and then anybody who wants to can file a statement of opposition. And so over the years, you know, I've had a lot of opposition, in some cases as many as 70 or more parties opposing a single application. And the dynamic of that can sometimes be frustrating because it's much easier to say no than yes, you know. And so there are a number of clients, a number of water entities on the river that, you know, I don't know if it's it's the entity or the attorneys representing them. There's sort of a blurred line about that in water law sometimes. But we found over the years, particularly in these early years, say 2002, 2010, 2012, that there was a group of water entities, that the answer was always no. Always driving for more. Always asking for more in these decrees. And I was primarily representing applicants and trying to implement some of these new ideas to keep the wells operating. And, you know, I think that some of these entities felt that by continually being a roadblock, you know, on whatever it was, that they would increase the amount of augmentation that had to be supplied to the river and thereby support their junior rights in the river. To the extent there was a strategy, I think that was it. I shouldn't put it that way. There definitely was a strategy. And there was a group of them that were very skillful at acting as opposers to sort of implement that strategy.
So that's one area kind of having to do with the nature of water court and the procedural way that it works with the applicant and the opposers, and so we actually made some reforms. I was a part of a committee, and continue to be part of a committee, appointed by the Supreme Court to examine some of these issues that we ran up against in those years of crisis and to try to find ways that we could be more collaborative, to have less sort of transactional cost on these oppositional matters. And so in that committee, we spent a substantial amount of time revising the water court rules to provide for greater disclosure, greater opportunity, in particular for engineers to discuss the issues in water cases, really trying to encourage parties to get to the
facts and discouraging kind of hardball tactics. You know, just the no without explanation, that can really delay things in water court. So that's one area.
Second area I've encountered a lot of opposition, I don't know who said it, but it's absolutely true that there's nothing worse than an idea before it's time. And there's been a number of times in my career where I less than diplomatically suggested some kind of change or improvement. And it wasn't received all that well. So the second area in which I've encountered opposition again, kind of goes back to this theme of change. You know, I have over the years in, you know, just attempting to solve problems for clients. I've suggested a number of new ways to look at things, different ways of approaching things from a policy standpoint. And some of those were terrible ideas. Some of them were good ideas. And but even the good ideas, I found that again, to sort of put that out in whole cloth and to assume that everyone is going to see that it's the right thing to do assumes too much. And so there's a lot of conservative conservatism in water and water policy. And there's really a large group of people in the state and at the General Assembly and in water users, groups of water users that just simply have a conservative approach. [interrupted by wasp] Yeah, it's not going to work with this wasp here [laugh]. They have a conservative approach. And it doesn't matter what the idea is, if it's new, it's initially rejected perhaps two times, three times, four times, five times. And so I've encountered a substantial amount of resistance there.
And I can see now, having done it for over 20 years, that some of the seeds that I planted have taken root and some of them have been changed or added to by others, that's the way it should work. And, you know, again, it's a big, complex system. It's resistant to change. And in order to implement change in it, you really have to have the patience to do the groundwork, to talk to the people that are involved, to introduce the concept slowly and carefully. And it's just not
something that changes on a dime. So particularly early in my career, I experienced a lot of opposition. Maybe there's a theme starting to emerge here.
Hailey Groo [00:18:28] Can you describe some of the most impactful Colorado groundwater cases during your career?
Andy Jones [00:18:33] Sure, yeah. You know, I have in mind really three cases related to tributary groundwater and then two related to designated groundwater, because very early on I started representing designated groundwater management districts and did a lot of work in designated basins. And so on the tributary side, really, the Empire Lodge case in 2002. I mean, that's an easy one for me, because the Empire Lodge case was the case in which the Supreme Court struck down the state engineer’s ability to approve temporary substitute well temporary replacement plans, essentially on the South Platte for these big well plans that I was
representing. And ironically, it wasn't even in Division One. It didn't have anything to do with wells, but the kind of pulling the rug out of that authority, or I guess more properly, the court finding that the state engineer never had that authority. That changed everything on the South Platte River and led to this series of challenges to the wells' ability to operate, you know, to the WAS case and the things that I described earlier. So that was huge.
The next case that was instrumental was the rules case in 2003. So we had Empire Lodge and that that's where the Supreme Court said the state engineer did not have the authority to approve substitute water supply plans. And then the state engineer came back and as he had done in other basins and said, okay, well, we're gonna make some rules under which we could approve substitute water supply plans, or the equivalent of that, in the South Platte Basin. And, you know, the same parties that were challenging the well operation in the South Platte
this, of the state engineer's request for these rules, meaning that all of the wells in the South Platte River had to come under a court-decreed augmentation plan. And that rules case was instrumental because Empire Lodge was alarming. But the rules case really cemented in this new regime, took a big step forward to say, okay, all the wells have to have augmentation plans. And that's where I set off down this road with the WAS wells. So that's the next one. The third one is this WAS case I've been talking about. There was a Supreme Court appeal and that was 2009. And as I described in the WAS trial, we tried a bunch of sort of innovative approaches to keep these wells operating. And a lot of it had to do with the operation of the projections and the plans. So, you know, the wells cause delayed depletions to the river. And in order to operate them, we needed to be able to show that we could replace those depletions at the time, place and amount that they occurred. We had certain sources in the plan, as I said before, some senior water rights that were reliable every year. But a lot of what we had were plans to divert water into new reservoirs and into recharge sites under a junior right, which was not reliable all the time. We had to catch as catch can. And one of the big issues in the case had to do with whether we could project deliveries to these junior rights. We know that they're not going to get water every year. But if we look at the historical record based on that, we could say they would get water every third year, fourth year. There was some amount that we could project, right. And so the role of the projection was to take the water supplies that you had, and to project them out to sort of lay those on top of the depletions you were expecting. And then you could see
whether you were able to replace your depletions. And then in that same, really it's an Excel spreadsheet, you could put in some pumping for the wells. And we're talking about thousands of wells now. You know, you would put in, we called it a quota, meaning a percentage of what the farms actually need. So let's say you put in a 10 percent quota, 10 percent of what they needed, then that would populate itself through the depletion information. And you knew what your sources were.
And the way that this developed in court over time was that so long as your projection could show that you could replace your depletions long enough for everyone to be comfortable generally, you know, five to seven years or something close to what the depletions were in time or the majority of the depletions, I should say, then you could pump. So the critical question was, what could you project? And I think everyone agreed that you could project senior rights that were reliable and you've got those every year. But how could you project water in
reservoirs? Could you project any water going into your recharge sites? The district court said, no, you could not project those junior sources. And that's what shut down our wells for a period, because we had developed a projection that would have allowed them to pump. Well, the Supreme Court sided with the district court and took a very conservative approach to say, no, you really can only project those senior sources. So that was one big issue there.
And another one had to do with the wells' responsibility or the depletions that had occurred in the past. So, you know, from 1968 essentially, or 1969 to 2002, or at least the early 70s to 2002, we had these temporary approvals by the state engineer where these wells were operating under those approvals. And so everything that they could tell according to the law. And so here they are going along for generation. Pumping the wells. And when we got to the point in 2005, when we were trying the WAS case, it became clear that under the new policy, if you will, that these wells were going to be held accountable for all of the pumping that had occurred clear back to the beginning. And because those depletions are delayed, particularly in cases where those wells are a long ways from the river, that was a big debt. So not only were they asked to shut down, but they were also asked, in a way, to pay for the sins of their fathers and pay all this off before they could turn the wells on again. We didn't think that was fair. And we challenged
that in the district court, and lost in the Supreme Court, agreed with the district court. So that was another big issue there.
So at that point, you know, after that WAS case, it was kind of like the Supreme Court had spoken. If there was any question about whether this new regime was going to take hold, it was firmly cemented in place. The changes that we'd implemented, giving more flexibility and keeping the wells operating were approved. So that was good, but they didn't go nearly as far as we would have liked. So some of the wells had to be shut down for a number of years to kind of catch up on these post-pumping depletions. That was kind of a mixed bag. So those are the tributary cases that I remember. Empire Lodge, the rules case in 2003, and the WAS case in 2009.
On the designated groundwater side, you know, the cases that I think about are the Goss case in the year 2000, and the Gallegos case initially in 2006. So in the Goss case, the question was in the context of a designated groundwater basin, who has the authority to enforce a priority call between the wells and the designated basin? And the Supreme Court came down in that case and said that the designated basin district does. The district that's in place there has that authority. Up until that time, there was some question under the Groundwater Management Act how much authority districts really had. And the Goss case elevated the power of the districts beyond what anybody thought really at the time and made it clear that the districts were going to play a fundamental role in the administration of groundwater in those basins. And so I came along, you know, early in that time I worked on that case. I was involved in all the cases I discussed so far. The Goss case was my first, I think, experience with the Supreme Court and I actually lost. But the districts won. So at that time, the districts, that particular district we were representing, I’m not sure they wanted that authority, but that kind of set me off down a path. Me and Kim and our firm of representing groundwater management districts and really filling out and defining the power and authority, you know, that they had. And so a lot of our career in designated basins has been finding that boundary between the authority of the groundwater commission and the districts. And we were the ones that were advocating for districts and really consistently pushing that boundary, trying to establish what we felt was their due under the Groundwater Management Act. So that case was instrumental.
And then the Gallegos case is on the Crow Creek Basin. I also worked on that case. And the question there was essentially whether or how a portion of a designated basin could be de-designated. So the Gallegos' had a surface right on a creek in Crow Creek Basin. And they felt that the wells in the designated basin were affecting their surface right. And tried to challenge that. And we represented the well owners in the basin. And ultimately, the Supreme Court laid out a path for the Gallegos' to challenge that designation. But it also recognized the fact that the basin had already been designated. You know, these decisions had already been made.
Everybody had a chance to challenge it and it was final. So what the Supreme Court said, in essence, was, you know, Gallegos', you can challenge this, but you have to bring new
information. You can't show us the same old stuff that the commission already had cited. You've got to bring us new information. And at the end of the day, after additional litigation, the
Gallegos', the court found the Gallegos' were unable to bring that additional information. And the basin stayed closed. And then in an example of what I described earlier of legislation following case law, it wasn't long after that that I was part of an effort to change the statute, to essentially prohibit the de-designation of existing wells in a designated groundwater basin, on the principle that that's what the General Assembly intended when it created the basins, number one. And second, you know, having seen the impact of the South Platte well crisis and the shutdown and the impact to the economy, and really to families and clients and people that I knew. I was part of a group that felt that that was not the right way to handle water policy, to set up a basin and
say that people are authorized to pump, but then forever subject to being curtailed. And so that that was a successful change to the statute. That sort of prevented a repeat of that litigation in the Gallegos case. So those are the groundwater basin cases, Goss and Gallegos that I think about.
Hailey Groo [00:31:46] Can you please briefly describe the legal definitions of tributary, non-tributary, and not non-tributary groundwater?
Andy Jones [00:31:53] Yes. I'll do it in the way that I describe to students who are encountering this, you know, for the first time. And if you want absolute precision, maybe you should listen to another interview, but hopefully, this will make sense. So Colorado groundwater law consists of a rule and exceptions to that rule. Okay, so the rule is that any groundwater encountered anywhere in the state is presumed to be tributary to the natural stream. So that's where you start. And so that would apply to all groundwater throughout the state at the initial stage. The exceptions, the principle exceptions, have to do with non-tributary groundwater and exempt wells. But. Let's talk about non-tributary first, non-tributary water. This is on a statewide basis because we're going to get a little bit more specific in a minute and deal with Denver Basin, but on a statewide basis, non-tributary groundwater is groundwater that affects the flows in a natural stream less than one-tenth of one percent in one hundred years. As a practical matter, what this means is it’s very, very remote, and very small number of wells would qualify for this, particularly in what you'd consider to be the uppermost aquifer, an alluvial aquifer or an unconfined aquifer. Now, throughout the state, there are various places where we have confined or semi-confined aquifers that will meet this standard. And the burden is on the parties saying that it's non-tributary.
So, for example, in northern Larimer County, I can apply for a determination of non-tributary status for X number of acres. And the burden is on me to bring the engineering showing that it influences the rate of a stream less than one-tenth of one percent in 100 years. So that's non-tributary. So we have tributary and non-tributary so far. Now we have to talk about Denver Basin. And the Denver Basin is a large prehistoric aquifer on the Front Range. It actually consists of a number of aquifers that are layered. One of them is called the Denver Aquifer, which is confusing. The entire structure is the Denver Basin. This water was laid down by the advance and retreat of inland seas in prehistoric times. As each sea advanced and retreated, laid down a layer of fine silt that then becomes shale, which is largely impermeable. So the layers are separated by essentially impermeable layers of shale and other materials. And so what happens is, as these layers were laid down through vast amounts of time, they were filled with water and some of the water is trapped in a sense and under pressure. It's under
hydrostatic pressure. The only place that water enters these aquifers now is where the basin turns up at the edges.
So if you think of the hogbacks along our Front Range, a lot of those would be the turning up of those sedimentary layers. So very limited recharge. A lot of water. Yet much of it does not influence the flow in our streams or does to only a limited extent, depending on how much of a connection there is between that particular aquifer and the uppermost layer. So you can imagine that the deepest aquifers have very little interaction with the stream, whereas those that are closer to the surface have more interaction. And there's one that is essentially intermingled with the surface aquifer in a lot of areas called the Dawson Aquifer. So there's a bunch of different layers.
The Denver Basin is very important economically to the development of Denver and the South Metro Area and was tapped very early on for use by the developing city and cities. And for a
long time, we didn't really have any good law governing that. We knew that it was an available aquifer. We knew that it was often under hydrostatic pressure. So much, in fact, that early on the elevators in the Brown Palace Hotel were powered by the Denver Basin, right, Denver Basin water coming up. But there wasn't really good law around that. And the General Assembly and the policymakers in the state began to realize, you know, as we increased our knowledge about the aquifers and we began to understand how they operated. Policymakers began to realize that this was an incredibly important water source for the Front Range, this Denver Basin. And although it was essentially nonrenewable, it was powering a lot of development, and bringing in a lot of, people were able to build in places that they couldn't otherwise build.
And so there was a desire to provide a policy that would encourage actually the use of that nonrenewable aquifer to power development. Essentially to recognize what had already occurred and then to provide, in a sense, an incentive to use it more. Which sounds kind of crazy in today's age. I mean, most of us now in this sort of environmental age would think, why on earth would you incentivize the rapid use of a nonrenewable resource? Well, we have a different way of looking at things now, I mean, is the short answer. But that's what we did. And so in the course of looking at this Denver Basin, remember, there's lots of wells already in it and lots of people relying on them, and lots of money wrapped in it and lots of development. And you're in the General Assembly. You're not in the court, right, which is a whole different set of rules. More having to do with politics than it does good groundwater policy necessarily. And so they looked at it and they discovered, they established a committee, and engineering looked at it and they found that some of these aquifers were truly non-tributary, which was great because it meant that they didn't have to make any special tweaks in the law to allow the continued use of them. That was already happening.
But to their alarm, they discovered that some of the aquifers that were being heavily relied upon and that they wanted to open up for more development did not meet our non-tributary definition. That's one thing. So what they did is they said, okay, we're gonna give the Denver Basin a boost. We're gonna give it an extra advantage because of its great economic importance. And what we're gonna do is we're gonna pretend that everywhere in the Denver Basin, all of the aquifers, that the hydrostatic pressure is at the surface, the top of the aquifer, essentially sort of eliminating the hydrostatic pressure in the aquifer, just from an engineering standpoint, just on paper. We're gonna make this change and we're gonna say by legislative fiat, signature of the pen, we've reduced the hydrostatic pressure in those aquifers.
So that brought a bunch of those aquifers that weren't quite non-tributary into non-tributary status. I could just see the legislative conference rooms now. You know, everybody's like, great. All right, we got it. And I know I was not involved in these discussions. That was before my time. You probably interviewed those that were and I'm gonna be really interested to hear their take. Looking from the outside, I have to use my imagination and picturing people say, great, we've got all these in. But then the engineer has to sort of stumble and stutter and say, but, you know, there's still a bunch of water that we're relying on, we want to extract, that are outside the definition still, even with this beneficial presumption. So then the room goes silent, right? Nobody knows what to do because we're trying to make it legal to withdraw all this water and incentivize it.
And so, you know, in true legislative form, somebody speaks up and says, well, we should create another category. And the question is, what should we call it? What should we call this type of water that doesn't meet the non-tributary of definition in the Denver Basin, even with our extra assumption. And, you know, naturally, it's not very creative, but you can see where somebody would say, well, it's not non-tributary and that's what's stuck. So not non-tributary of
water is water in the Denver Basin that does not meet the non-tributary definition, even with the extra help. And what that means is that it's at least partially connected to the stream. Even with those beneficial assumptions and the extent to which it’s connected to the stream requires that there is some form of augmentation. So with the not non-tributary category for the Denver Basin, what we have is something that will allow you to use that portion of the Denver Basin Aquifer for development with a couple of advantages. One is the assumption that the hydrostatic pressure is reduced to nothing at the top of the aquifer applies there. And so you sort of get that boost. That makes it less, it makes it appear less tributary than it actually is.
So we're actually, that was a decision by the General Assembly to short the river I mean for economic reasons, very odd in the context of my career, which had to do with accounting for every drop in the South Platte. But anyway, with the non-tributary, you have the benefit of that presumption. And then what that allows you to do is to use that resource with either, you know, in many cases a small amount of augmentation, a fraction of the depletions as opposed to the full amount.
Now, I should say and just emphasize again that it sort of tips the hat to our system throughout the rest of the state, because there are places where the not non-tributary aquifer requires the replacement of 100 percent of depletions. It depends where you are and all that. That's the benefit of not non-tributary. So you have the rule and the exception, rule throughout the state: tributary. The exception is non-tributary. There's a couple others. But for this purpose, the exception is non-tributary. And then within the Denver Basin, which is this important prehistoric aquifer on the Front Range that we rely on for development, you have portions of that that are non-tributary and you have portions of that that are not non-tributary. In the non-tributary sections you don't have to provide an augmentation plan to use that. In the not non-tributary sections, most of them you do. But there are substantial advantages that the General Assembly sort of baked in the cake that will encourage the use of that Denver Basin Aquifer.
Hailey Groo [00:44:02] What is your opinion of the State Engineers Office current well-permitting practices based on legal groundwater definition in designated basins? Andy Jones [00:44:13] I think that the state engineer does a good job of implementing definitions that we have in the law when it comes to groundwater. Their involvement in the tributary groundwater system at the water court level is a different discussion. But, you know, the vision that we've always had, there's always been a tension in Colorado between the state engineer as kind of the administrator of the river. In other words, the court provides the decrees and the state engineer implements them. The General Assembly provides the laws on
groundwater and the state engineer implements them. Between that scenario and an alternative scenario that many of our Western states have, in which the state engineer has substantially more decision-making authority, more like sort of like the court and the administrator. And Colorado chose a system where the courts and the General Assembly make the rules and the state engineer enforces them. I think in the area of well permitting, the state engineer has, for the most part in my career, done a good job of simply being that implementation body for groundwater.
Hailey Groo [00:45:27] What issues do you believe still have not been resolved in terms of Colorado groundwater and designated basins?
Andy Jones [00:45:37] I think that with designated basins, I feel like we've got a ways to go with our data collection, first of all. The place that I see we're going in designated basins and outside is a very data-driven, science-based approach to administration. And that's, I think that
inevitably that's where the policy and the technology is taking us. The law seems to lag behind a little bit with that. But that's one big change that really needs to be resolved, and that is an additional investment in data collection modeling. We really need to know what's going on with these aquifers and work on the issues related to sustained yield. We really haven't wrestled with those in the way that we should. And another thing in the designated basins, particularly those that border the Denver Metro Area, Lost Creek, Upper Black Squirrel, Kiowa-Bijou. In the future, I think we're going to see, need to see, increased flexibility in how those groundwater rights are used. So an ability to devote them not only to agriculture but also to municipal uses, and to be able to flexibly move between those types of uses. So I think flexibility, data collection, and a focus on sustained yield, a long term view.
Hailey Groo [00:47:08] What advice do you have for present and future generations in Colorado?
Andy Jones [00:47:16] Well, I think that as we go forward with water policy, really the key themes are going to be, like I talked about, for designated basins. That's going to be data collection science. A systems approach. And I think the law is going to have to catch up and accommodate that. I think we need to be more concerned about having flexibility in our system to use the water rights for various purposes. I think we're past the day when a water right can be dedicated solely to one purpose. I think in the future, all of the rights will be available for all of the uses. And that really stretches water lawyers’ brains to figure out how to do that. But we need to be able to move those resources around. It's only if we do that that we'll be able to maintain our irrigated agriculture, to provide water for our cities and for municipalities. Really, in the future, I think we need to look at water management basin-by-basin and watershed-by-watershed, which our law doesn't do a good job of doing in terms of water supply, water law. And we need to think about issues like sustained yield. How much can this basin produce reliably year to year? And we need to be able to project what we expect it to produce in a given year and to have a system of management that can adjust as the year goes on, and change. You know, we have this idea of property-based usufructary rights, has a lot of merit and it's brought us a long ways. Somehow we've got to integrate that with really a systems-based, data-driven administration that's going to max, that's going to truly maximize the use of the water. And another trend that I see for future generations, I mean, I see it even in the younger generations I work with. I think that, again, our usufructary, property-rights-based system, is going to have to allow a place at the table that recognizes the public interest to a greater degree. Because if we don't make room at the table in that system for that, it will make its own way. And we may not like the results of that. So I think there is a growing dissatisfaction that most of the water rights in Colorado are concentrated in the hands of relatively few, and that most of the citizens of Colorado did not gain a benefit from those natural resources that are kind of their right as citizens. And whether I agree with it or not, whether anyone agrees with it, you have to sort of take these policy issues on their own terms. And I think we need to find a way to integrate those kinds of interests better in our system if we want to avoid a collapse or a change that we don't want.
So I think that as a young professional, things I would have done differently and things I see coming up or things that I thought worked well. I would focus on math and science, science for obvious reasons, watershed science those kinds of things are a really strong background for somebody who wants to go into water rights. Math, because as much as you know, is sort of a joke that lawyers don't want to do math. The kind of thinking you develop in logic classes and math classes is the kind of step-by-step logical thinking that solves problems in the law as well. So I think that I would focus on that. I would also say that this is a field, water rights, water
administration, water law that's just going to continue to grow in Colorado. And I think it has a really good outlook. And I'm really encouraged by the group of young professionals that we have now coming up. You know, it's gonna be their turn soon.
