August 24, 2019

Colorado Supreme Court: Unenforceable 1909 Water Decree Fails to Set Forth Indicia of Enforceability, Including Appropriation Date, Priority Number, and Quantification Information

The Colorado Supreme Court issued its opinion in Dill v. Yamasaki Ring, LLC on Monday, February 25, 2019.

Water Law—Adjudicated Water Rights—Indicia of Enforceability. 

The supreme court considered whether a 1909 water decree adjudicates a water right in certain springs. Because the decree failed to set forth required indicia of enforceability—including an appropriation date, a priority number, and quantification information—with respect to the springs, the court answered the question in the negative. A decree must measure, limit, and define both the nature and extent of a water right. The priority, the location of diversion at the supply’s source, and the amount of water for application to a beneficial use are all essential elements of the appropriative water right. Of these, priority is the most important stick in the water rights bundle because priority is a function of appropriation and adjudication; indeed, the purpose of adjudication is to fix the priority of a water right. 

As the water court concluded, the 1909 decree clearly and unambiguously sets forth an unenforceable entitlement to receive and conduct water from the springs. Without indicia of enforceability, and in particular a priority number, the 1909 decree cannot be deemed to adjudicate a water right in the springs that can be enforced and administered. Therefore, the court affirmed the water court’s judgment.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Water Court Properly Dismissed Objection that Water Right Holder Would Not Be Able to Deliver Augmentation Water

The Colorado Supreme Court issued its opinion in Well Augmentation Subdistrict of the Central Colorado Water Conservancy District and South Platte Well Users Association v. Centennial Water and Sanitation District on Tuesday, February 19, 2019.

Water Law—Burden of Proof

Centennial Water and Sanitation District (Centennial) appealed from a water court order dismissing its objection to the Well Augmentation Subdistrict’s (WAS) proposal to use additional sources of replacement water for its previously decreed augmentation plan. Centennial had asserted that WAS failed to comply with the notice requirements of the decree itself and that this failure amounted to a per se injury, for which it was entitled to relief without any further showing of operational effect. The water court heard Centennial’s motion objecting to WAS’s proposed addition of new sources of replacement water and, without requiring WAS to present evidence, found that Centennial failed to establish prima facie facts of WAS’s inability to deliver augmentation water in quantity or time to prevent injury to other water users. Referencing C.R.C.P. 41 as the appropriate procedural vehicle, the water court dismissed Centennial’s objection.

The supreme court affirmed. Exercise of the water court’s retained jurisdiction was statutorily limited to preventing or curing injury to other water users, and the evidence presented by Centennial failed to establish that WAS would be unable, under the conditions imposed by the engineer for approval of the additional sources of replacement water, to deliver augmentation water sufficient to prevent injury to other water users. Accordingly, the water court’s dismissal of Centennial’s objection was proper.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Appellant Must Adjudicate New Water Right Rather than Amend Existing Augmentation Plans

The Colorado Supreme Court issued its opinion in Coors Brewing Co. v. City of Golden on Monday, June 25, 2018.

Amendment of Augmentation Plans—Return Flows.

This case concerns appellant’s application to amend its decreed augmentation plans to authorize the reuse and successive use of return flows from water that appellant diverts out of priority pursuant to those plans. On competing motions for determinations of questions of law, the water court ruled that (1) any amount of water not beneficially used by appellant for the uses specified in its decreed augmentation plans must be returned to the stream; (2) appellant’s decreed augmentation plans did not authorize the reuse or successive use of such water; and (3) appellant may not obtain the right to reuse or make successive use of such water by way of amendment to its augmentation plans but could only obtain such rights by adjudicating a new water right.

The supreme court affirmed the water court’s judgment. To obtain the right to reuse and make successive use of the return flows at issue, appellant must adjudicate a new water right and may not circumvent this requirement by amending its decreed augmentation plans. Further, the diversion of native, tributary water under an augmentation plan does not change its character. Accordingly, the general rule, which provides that return flows belong to the stream, applies. The water court also correctly construed appellant’s augmentation plans.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Decree Determining Water Right Only Allows Diversion at Downriver Pump

The Colorado Supreme Court issued its opinion in Select Energy Services, LLC v. K-LOW, LLC on Monday, May 15, 2017.

Water Law—Change of Water Right—Rules of Water Decree Interpretation—Nature and Extent of Right Acquired.

This appeal from the water court in Water Division No. 1 concerns the nature and extent of a water right following a recent change to its diversion point. The right initially diverted water at a headgate on the South Platte River, but pursuant yo the recently enacted simple change statute, C.R.S. § 37-92-305(3.5), its owner changed that diversion point to a pump farther downstream. Interpreting the decree recognizing the change, the water court concluded it did not include a right to divert water from a ditch historically used to convey the water right. On appeal, the supreme court reached the same conclusion. Because, by its plain language, the decree defining the water right allows its holder to divert water only at the pump downriver from the disputed ditch, and that language is not susceptible to any other reasonable interpretation, the court concluded that the decree does not include a right to divert water from that ditch. The court therefore affirmed the water court’s judgment.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Storage of Water Right Prior to Use Was Not Lawful

The Colorado Supreme Court issued its opinion in Grand Valley Water Users Association v. Busk-Ivanhoe, Inc. on Monday, December 5, 2016.

Change of Water Right Application—Historic Consumptive Use Analysis—Transmountain Diversion.

This appeal from the water court in Water Division 2 concerns certain rulings relevant to the historic consumptive use quantification of transmountain water rights that are the subject of a change application. The Supreme Court held that the water court erred when it concluded that storage of the water rights on the eastern slope prior to use for their decreed purpose was lawful. The Court concluded that the right to store water in the basin of import prior to use is not an automatic incident of transmountain water rights, but rather, must be reflected, or at least implied, in the decree. Here, the decree is silent with respect to storage of the water on the eastern slope prior to use for supplemental irrigation and, on the facts of this case, the record does not support the water court’s finding of an implied right in the decree for such storage. To the extent that unlawful storage of the water on the eastern slope expanded the decreed rights, such amounts cannot be included in the quantification of those rights.

Because storage of the subject water rights in the basin of import prior to use was unlawful, the water court erred in including the volumes of exported water paid as rental fees for storage on the eastern slope in its historic consumptive use quantification of the water rights.

Finally, the water court erred in concluding that it was required to exclude the 22 years of undecreed municipal use of the subject water rights from the representative study period. In this case, the undecreed use did not represent expanded use of the decreed right for which an appropriator may not receive credit but rather, 22 years of non-use of the decreed rights. Because unjustified non-use of a decreed right should be considered when quantifying historic consumptive use for purposes of a change application, the water court must determine whether the years of non-use of the rights for their decreed purpose were unjustified. If so, the water court should consider including the years of unjustified non-use in the representative study period as “zero-use” years for purposes of its historic consumptive use analysis.

The Court reversed the water court’s rulings and remanded the case for further proceedings consistent with this opinion.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Reversal Based on Firm and Definite Conviction that Mistake Had Been Made

The Colorado Court of Appeals issued its opinion in Indian Mountain Corp. v. Indian Mountain Metropolitan District on Thursday, August 11, 2016.

In 1970, Indian Mountain Corporation’s (IMC’s) predecessor in interest purchased land and water rights in Park County with the intent of creating an upscale subdivision within a community of amenities. After residential construction had begun in the Indian Mountain subdivision, SB 72-35 passed, requiring the subdivision to obtain a water-court-approved augmentation plan. The plan required homeowners to drill a well at their own expense, but for many years, IMC maintained and operated the plan at its own expense.

In 1972, the developer spearheaded the creation of the Indian Mountain Parks & Recreation District, which was converted into the Indian Mountain Metropolitan District (IMMD) in 2012 in order to be able to legally purchase and provide water services. IMMD negotiated to purchase the plan from IMC, but was not successful. In 2013, owners of a neighboring ranch approached IMC’s director about purchasing the reservoir, and eventually purchased all of the assets of IMC, including the water plan. IMC’s new owner charged IMMD for its water usage, but IMMD did not pay the invoices.

IMC filed an action in district court, seeking a declaratory injunction that it is the legal owner of the water rights and the plan and IMMD has no right, title, or interest in them. IMMD filed an answer and counterclaim, seeking a declaratory injunction that the Indian Mountain lot owners owned the plan and water rights as beneficiaries of a constructive trust. The district court issued an order in favor of IMMD. IMC filed a post-judgment motion requesting a hearing on the amount of reasonable fees it could charge IMMD for ongoing operation of the plan, which the district court denied.

On appeal, the court of appeals ruled the district court erred in finding that the water rights and augmentation plan were held in a constructive trust. The court based its reversal on a “firm and definite conviction that a mistake ha[d] been made.” Because three experts testified that the lot prices included the cost of the plan, but all advanced different theories that were directly refuted by the documentary evidence in the record, the court found reversal necessary. The court of appeals found that the district court clearly erred in finding that the lot prices included the cost of the plan, and the unjust enrichment analysis failed at the first prong.

The judgment of the district court was reversed.

Colorado Supreme Court: Water Authority Can Use Junior Priority First but Must Live with Its Decision

The Colorado Supreme Court issued its opinion in Concerning the Application for Water Rights of the Upper Eagle Regional Water Authority in the Eagle River in Eagle County, Colorado: Upper Eagle Regional Water Authority v. Wolfe on Tuesday, May 31, 2016.

Actual Use of Water and Application to Beneficial Use—Nature and Extent of Rights Acquired.

The Upper Eagle Regional Water Authority filed an application to make absolute 0.47 cubic feet per second of its Eagle River Diversion Point No. 2 conditional water right. The State and Division Engineers opposed the application, asserting that the Upper Eagle Regional Water Authority could not make its Eagle River Diversion Point No. 2 water right absolute when it owned another, more senior conditional water right, decreed for the same claimed beneficial uses at the same location and for diversion at the same point. The Supreme Court held that where there is no evidence of waste, hoarding, or other mischief, and no injury to the rights of other water users, the owner of a portfolio of water rights is entitled to select which of its different, in-priority conditional water rights it wishes to first divert and make absolute.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Historical Consumptive Use Analysis Deficient so No Error in Denying Water Right Application

The Colorado Supreme Court issued its opinion in Boulder County v. Boulder & Weld County Mutual Ditch Co. on Monday, March 21, 2016.

Change of Water Right and Augmentation Plan Application—Historical Consumptive Use Analysis—Applicant’s Burden of Proof.

In this decision, the Supreme Court affirmed the water court’s judgment dismissing Boulder County’s application for underground water rights, approval of a plan for augmentation, a change of water rights, and an appropriative right of substitution and  exchange. The components of the County’s application were interdependent, such that  the fate of the application as a whole turned on the fate of the requested change of water  rights. The water court denied the change request based on its determination that the  County failed to carry its burden of proving historical consumptive use of the water right it sought to change. The Supreme Court concluded that this determination was supported by the record and therefore upheld it.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Storm Runoff Correctly Classified as Designated Ground Water

The Colorado Supreme Court issued its opinion in In the Matter of Water Rights as Applied for by Meridian Service Metropolitan District: Meridian Service Metropolitan District v. Ground Water Commission on Monday, November 16, 2015.

Subject Matter Jurisdiction—Designated Ground Water—Claim Preclusion.

Meridian Service Metropolitan District (Meridian) principally asked the Supreme Court to decide whether storm runoff may be classified as “designated ground water” subject to administration and adjudication by the Colorado Ground Water Commission (Commission), or whether such water is in or tributary to a natural stream, vesting jurisdiction in the local water court pursuant to the Water Right Determination and Administration Act of 1969, CRS §§ 37-92-101 to -602. Meridian also made claim preclusion and public policy arguments and asserted that the Colorado Groundwater Management Act, CRS §§ 37-90-101 to -143, is unconstitutional. The Court concluded that because this case presented a question as to whether the water at issue met the statutory definition of “designated ground water,” the Commission had jurisdiction to make the initial determination of the issue presented. The Court further held that the Commission, and the district court on de novo review, correctly found that a portion of the water at issue met the statutory definition of “designated ground water” and was therefore subject to administration by the Commission. The Court concluded that Meridian’s remaining arguments were not supported by the record or applicable law. The district court’s order was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Challenges to Water Plan Failed to Allege or Establish Injury

The Colorado Supreme Court issued its opinion in Concerning the Office of the State Engineer’s Approval of the Plan of Water Management for the Special Improvement District No. 1 of the Rio Grande Water Conservation District: San Antonio, Los Pinos and Conejos River Acequia Preservation Association v. Special Improvement District No. 1 of the Rio Grande Water Conservation District on Monday, June 29, 2015.

Water Management Plans—Groundwater Management Plans—Retained Jurisdiction of Water Management Plans.

Objectors invoked the water court’s retained jurisdiction under CRS § 37-92-501(4)(c) over a plan of water management to raise challenges to an annual replacement plan developed pursuant to that plan of water management. The Supreme Court held: (1) the water court correctly rejected challenges raising issues decided by the water court in a prior decree and approved by this Court in San Antonio, Los Pinos, and Conejos River Acequia Preservation Association v. Special Improvement District No. 1, 270 P.3d 927, 931–32 (Colo. 2011); (2) an annual replacement plan need not be stayed pending resolution of objections; (3) the annual replacement plan’s identification of Closed Basin Project water was a suitable and adequate source of replacement water; and (4) the annual replacement plan’s treatment of augmentation plan wells did not violate the plan of water management, and its failure to include a separate list of augmentation plan wells did not render the annual replacement plan invalid. The Court affirmed the water court’s pretrial orders and its judgment and decree upholding the annual replacement plan.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Fees and Costs Appropriately Imposed Against Non-Party for Frivolous Defenses

The Colorado Supreme Court issued its opinion in Concerning the Application for Water Rights for Cherokee Metropolitan District in El Paso County: Upper Black Squirrel Creek Ground Water Management District v. Cherokee Metropolitan District on Monday, June 22, 2015.

Ground Water Rights—Parties Rights Under a Stipulation.

Upper Black Squirrel Creek Ground Water Management District (UBS) appealed from an order of the water court interpreting an earlier stipulated decree, to which UBS and Cherokee Metropolitan District (Cherokee) were parties, concerning Cherokee’s rights to ground water in the Upper Black Squirrel Basin and, particularly, Cherokee’s right to export water for use outside the basin. UBS sought a declaration that a provision of the stipulation requiring Cherokee to deliver wastewater returns back into the basin for recharge of the aquifer barred Cherokee and Meridian (another metropolitan district with which Cherokee had entered into an intergovernmental agreement) from claiming credit for these wastewater returns as replacement water, for purposes of acquiring the right to additional pumping from Cherokee’s wells in the basin. The water court ruled instead that nothing in the stipulation, and particularly not its use of the word “recharge,” implied abandonment or forfeiture of any right Cherokee might otherwise have to claim future credits with the Ground Water Commission.

Although the water court found that Meridian, as a nonparty, was not bound by the stipulation, it assessed costs and attorney fees against Meridian for pursuing frivolous defenses. Meridian cross-appealed the water court’s order imposing costs and attorney fees.

Because the water court properly interpreted the stipulation, and because it did not abuse its discretion in ordering costs and fees, its orders as to which error has been assigned on appeal and cross-appeal respectively were affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Water Court’s Conditional Decree of Non-Consumptive Hydropower Right Affirmed

The Colorado Supreme Court issued its opinion in Concerning the Application for Water Rights of Tidd: Frees v. Tidd on Monday, June 1, 2015.

Ditch Easement—Dominant and Servient Interests—Alterations to a Ditch—Conditional Water Right for Non-Consumptive Hydropower Use—Declaratory Judgment and Conditional Water Right Decree With Conditions to Protect Against Injury to Ditch and Water Right Interests—Water Right Determination and Administration Act of 1969.

The Supreme Court upheld the water court’s judgment entering a conditional water right decree for a non-consumptive hydropower use water right with a 2010 priority for 0.41 cfs diverted from Garner Creek through the headgate of Garner Creek Ditch No. 1 in Saguache County, Water Division No. 3. Charles and Barbara Tidd properly obtained a judicial declaration of no material injury to ditch and water right interests owned by the Frees in connection with a ditch easement located on the Tidds’ property. The Court upheld the water court’s finding that water is available for the non-consumptive conditional appropriation under the terms of the Water Right Determination and Administration Act of 1969, and the conditions included in the water court’s judgment and decree were sufficient to protect against injury to senior adjudicated water rights and the Frees’ ditch rights.

Summary and full case available here, courtesy of The Colorado Lawyer.