concurring in part and dissenting in part.
Although I largely agree with the remainder of the majority's analysis and conclu-gions, I would not affirm the water court's order conditioning the approval of an augmentation plan on the applicants' replacement of depletions that occurred before the plan was even applied for. Because I believe this order not only exceeds the water court's statutory authority but implicates important precepts of fundamental fairness, I briefly note my concerns.
Basically, the water court has denied a group of well owners the right to divert water out-of-priority unless they not only ensure that senior appropriators will not be injured by their proposed diversions but also replace water diverted through these same structures in the past without adequate, judicial authorization. Quite apart from the water court's clear lack of concern for the identity, much less eulpability, of the well-owners responsible for prior depletions, the augmentation plan it fashions bears virtually no relation to the prevention of injury from the applicants' proposed diversions. And the majority's attempt to justify this condition on the basis of a few isolated words in the statutory scheme suffers, at least in my view, from the kind of myopic vision often characterized as failing to see the forest for the trees.
The statutory scheme requires that out-of-priority diversions by junior appropriators be permitted as long as they will not injure senior appropriators; and it sanctions aug-mentating the stream with additional water as one way of ensuring that out-of-priority diversions will not adversely affect the availability of water to satisfy more senior rights. Because ground water diversions may have *422delayed effects, water courts are expressly admonished that they must include, as a condition of any augmentation plan, a requirement to replace even those depletions that will occur only after the proposed out-of-priority ground water diversions cease. See § 37-92-305(8), C.R.S. (2009). Similarly, because an applicant may be permitted to divert out of priority before its augmentation plan is finally approved, water courts are statutorily instructed to consider depletions from an applicant's "use or proposed use" in evaluating the feasibility of the applicant's plan. See § 37-92-8308, C.R.S. (2009). But considered in context, the discretion of water courts relative to the approval or disapproval of augmentation plans is clearly limited to fashioning terms and conditions that will prevent injury to senior appropriators from the out-of-priority diversions for which augmentation is sought-not terms and conditions that will penalize applicants for diversions they may have made before ever becoming applicants for the augmentation plan in question, or terms that will compensate senior appropriators for injuries resulting from pri- or diversions, even if those injuries actually could be traced to the current applicant or its well.
The statutory scheme does, of course, contemplate and provide a mechanism to sanction the pumping of ground water without authorization, and it provides specific sanctions, like curtailment and the assessment of fines and costs, for doing so. See § 87-92-503, C.R.S. (2009); see also Vaughn v. People ex rel. Simpson, 135 P.3d 721 (Colo.2006){(action by state engineer to enjoin and sanction well-owner who failed to comply with order to discontinue diverting, following announcement of Simpson v. Bijou Irr. Co., 69 P.3d 50 (Colo.2003)). Orders of this kind directed against individuals, however, are permissible only in statutory actions of a limited type, involving considerably more stringent process, with different standards of notice and proof, and an adequate opportunity to defend. See Groundwater Appropriators of South Platte River Basin, Inc. v. City of Boulder, 73 P.3d 22 (Colo.2003). In addition to the fact that there appears to be no dispute that any prior depletions by the applicants in this case were approved in advance by the state engineer, it is also clearly the case that denying junior appropriators the right to non-injurious, out-of-priority diversion unless they first replace prior depletions is not a statutorily approved sanction, even for violation of an express order of the state engineer not to pump. See § 37-92-508.
The distinction between an action to either enjoin or penalize unlawful pumping, on the one hand, and an application for permission to divert out-of-priority, on the other, is not merely technical. Perhaps in recognition of fundamental requirements of due process that must be satisfied before depriving someone of a property right, the majority apparently finds that the water court's order to replace prior depletions is actually an order directed at the particular structure or device (like a well or ditch) itself, rather than its owner; and therefore it is permissible upon compliance with only the looser requirements associated with in rem jurisdiction, made applicable by statute in this jurisdiction to applications for water rights. Aside from its affinity to the ancient practice of holding inanimate objects liable and subjecting them to forfeiture as punishment for causing accidental injuries, this hyper-technical fiction offers no legislative rationale for conditioning permission for out-of-priority diversions through a particular well or structure on that structure's "personal" history. It remains unclear to me whether this logic will now require applicants for water rights of all kinds to either discover and successfully defend the histories of the physical structures they intend to use or be required to pay off any "debt" to the stream found due and owing by such structures.
In short, I believe the majority conflates the purpose of augmentation, which is to offset any adverse effects of out-of-priority diversion that would otherwise be experienced by senior appropriators, with some intuitive, but not entirely clear or consistent, notion of equity. The water court's order in this case not only requires the applicants to provide replacement water for their proposed diversions, which would effectively leave senior appropriators in the same position as if the applicants proposed no further out-of-priority diversions or augmentation plan at all; but it *423also requires them to replace water diverted years earlier, which will actually increase the availability of water for, and enhance the position of, senior appropriators.
The statutory standards governing the water court's order in this case simply do not permit it to condition approval of the applicants' augmentation plan on the provision of replacement water for depletions that occurred before the plan was ever applied for, whether or not those past depletions will continue to affect the river in the future. Perhaps this thinking represents a kind of rough frontier justice, of which the majority considers the courts to be the purveyors, but I fail to see how it can be justified in terms of the regulatory scheme promulgated by the General Assembly. .
I therefore respectfully dissent from the majority's affirmance of this condition of the augmentation plan.