JUDICIAL DEVELOPMENTS

June 2008

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Colorado Supreme Court Upholds Aquifer Sustainability Rules Promulgated by State Engineer—Rules Did Not Impermissibly Restrict Right to Appropriate Water
Simpson v. Cotton Creek Circles

In Simpson v. Cotton Creek Circles, the Colorado Supreme Court reviewed challenges to rules regulating new withdrawals from the confined aquifer system of the San Luis Valley in Southern Colorado. At issue were the “Rules Governing New Withdrawals of Groundwater in Water Division 3 Affecting the Rate or Direction of Movement of Water in the Confined Aquifer System” (Groundwater Rules) promulgated by the Colorado State Engineer under its power to adopt rules and regulations to assist in the duty to regulate waters of the state. C.R.S. § 37-92-501(1). Opposer-Appellant Cotton Creek Circles, LLC (Cotton Creek) objected to the Groundwater Rules, arguing that they impermissibly deny the right to appropriate the unappropriated waters of the state and that they discriminate against new groundwater appropriators. The Colorado Supreme Court upheld the “Rules Governing New Withdrawals of Groundwater in Water Division 3 Affecting the Rate or Direction of Movement of Water in the Confined Aquifer System” as constitutional and not an impermissible restriction on water appropriation.