## Facts

- L.O. Fundingsland applied (Sept. 2, 1966) to the Colorado Ground Water Commission for a permit to drill a well in the Northern High Plains Designated Ground Water Basin in Kit Carson County.
- The Commission evaluated applications by examining a three-mile-radius area around the proposed well and setting a pumping limit intended to result in no more than 40% depletion of available groundwater over 25 years.
- The Commission denied the permit (Feb. 27, 1967) after concluding the area was over-appropriated under its management method.
- After a Commission hearing (Dec. 12, 1967) the denial was sustained; the Commission later reconsidered with additional information (Mar. 19–20, 1968) and again denied the permit (May 15, 1968).
- Fundingsland appealed to the district court, which held a statutory trial de novo and received expert testimony; the district court affirmed the denial.
- Fundingsland did not mount a facial challenge to the constitutionality of the Ground Water Act.

## Issues

1. Whether the denial of the permit was unsupported by the evidence and therefore arbitrary and capricious.
2. Whether denying the permit deprived Fundingsland of a constitutional right to appropriate groundwater.
3. Whether the Commission’s three-mile-radius/40%-in-25-years management standard was invalid because it was adopted contrary to administrative rulemaking requirements.

## Decision

- The Colorado Supreme Court affirmed the district court’s judgment upholding the Commission’s denial of the well permit.
- The Court held the over-appropriation finding was supported by competent evidence and the denial was not arbitrary or capricious.
- The Court rejected the claim of an absolute constitutional right to appropriate designated groundwater contrary to statutory limits.
- The Court upheld the Commission’s management standard as within the agency’s authority and not rendered unenforceable by alleged procedural defects.

## Legal Principles

- In designated groundwater basins, the right to appropriate is conditioned by the Ground Water Act and may be limited to prevent excessive depletion and protect existing users.
- An agency may deny a well permit when evidence shows the relevant area is already over-appropriated under a conservation-based management method.
- On appellate review following a statutory trial de novo, factual determinations supported by competent evidence will be upheld, and an agency decision supported by such evidence is not arbitrary or capricious.
- The Ground Water Commission may adopt and apply technical, hydrology-based criteria to administer designated groundwater, and such criteria will be sustained when within statutory authority and procedurally valid.

## Conclusion

The court upheld the Commission’s denial of a designated groundwater well permit, concluding that the area was over-appropriated under a hydrologic depletion standard, that no absolute constitutional right entitled the applicant to pump in conflict with statutory controls, and that the Commission’s management rule could be applied to deny new permits.


Fundingsland v. Colo. Ground Water Comm’n, 468 P.2d 835 (Colo. 1970)