Board of County Com'rs of County of Arapahoe, Matter of

• Decision Date: 21 February 1995
• Docket Number: No. 92SA68,92SA68
• Citation: 891 P.2d 952
• Parties: In The Matter of the Application for Water Rights of the BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF ARAPAHOE, in Gunnison County. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF ARAPAHOE, Applicant-Appellant/Cross-Appellee, v. UNITED STATES of America; Crystal Creek Homeowners Association and Ernest H. Cockrell; Colorado Wildlife Federation, Gunnison Angling Society, High Country Citizens' Alliance, National Wildlife Federation, Rainbow Services, Inc. and Western Colorado Congress; and Upper Gunnison River Water Conservancy District and Board of County Commissioners of Gunnison County, Colorado, Objector-Appellees/Cross-Appellants, v. COLORADO RIVER WATER CONSERVATION DISTRICT; Henry J. Berryhill, Jr.; City of Delta; City of Montrose; City of Grand Junction; City of Gunnison; Tri-State Generation and Transmission Association, Inc.; Crested Butte Water and Sanitation District; Perkins D. Sams; East River at Almont Property Owners Association; Gunnison County Electric Association; Murdie Homeowners' Association, Inc.; Mr. and Mrs. Charles Reeder; Virgil and Lee Spann Ranches, Inc.; State Engineer; State Board of Land Commissioners; Three Rivers Resort, Inc.; Uncompahgre Valley Water Users Association; Joseph P. Vader, Raymond P. Van Tuyl, Charles Richard Collard, Thomas E. Collard and Taylor Park Pool Association; and Wapiti Canyon Ranch, Ltd., Objector-Appellees, and Keith Kepler, Division Engineer, Water Division 4, Appellee Pursuant to C.A.R. 1(e).
• Court: Colorado Supreme Court

Page 952

891 P.2d 952

In The Matter of the Application for Water Rights of the

BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF

ARAPAHOE, in Gunnison County.

The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF ARAPAHOE, Applicant-Appellant/Cross-Appellee, v. UNITED STATES of America; Crystal Creek Homeowners

Association and Ernest H. Cockrell; Colorado Wildlife

Federation, Gunnison Angling Society, High Country Citizens'

Alliance, National Wildlife Federation, Rainbow Services,

Inc. and Western Colorado Congress; and Upper Gunnison

River Water Conservancy District and Board of County

Commissioners of Gunnison County, Colorado, Objector-Appellees/Cross-Appellants, v. COLORADO RIVER WATER CONSERVATION DISTRICT; Henry J.

Berryhill, Jr.; City of Delta; City of Montrose; City of

Grand Junction; City of Gunnison; Tri-State Generation and

Transmission Association, Inc.; Crested Butte Water and

Sanitation District; Perkins D. Sams; East River at Almont

Property Owners Association; Gunnison County Electric

Association; Murdie Homeowners' Association, Inc.; Mr. and

Mrs. Charles Reeder; Virgil and Lee Spann Ranches, Inc.;

State Engineer; State Board of Land Commissioners; Three

Rivers Resort, Inc.; Uncompahgre Valley Water Users

Association; Joseph P. Vader, Raymond P. Van Tuyl, Charles

Richard Collard, Thomas E. Collard and Taylor Park Pool

Association; and Wapiti Canyon Ranch, Ltd., Objector-Appellees,

and

Keith Kepler, Division Engineer, Water Division 4, Appellee

Pursuant to C.A.R. 1(e).

No. 92SA68.

Supreme Court of Colorado En Banc.

Feb. 21, 1995.

As Modified on Denial of Rehearing

April 10, 1995.

Vranesh and Raisch, P.C., John R. Henderson, Paul J. Zilis, Boulder, for applicant-appellant/cross-appellee.

Lois J. Shiffer, Acting Asst. Atty. Gen., U.S. Dept. of Justice, Robert L. Klarquist, Andrew C. Mergen, Appellate Section, Environment & Natural Resources Div., Washington, DC, Michael A. Gheleta, Lynn A. Johnson, U.S. Dept. of Justice, Environment & Natural Resources Div., Denver, for objector-appellee/cross-appellant U.S.

Brownstein Hyatt Farber & Strickland, P.C., Charles B. White, Wayne F. Forman, Denver, for objector-appellees/cross-appellants Crystal Creek Homeowners Ass'n and Ernest H. Cockrell.

David H. Getches, Roger Flynn, Bruce C. Driver, Boulder, for objector-appellees/cross-appellants Colorado Wildlife Federation, Gunnison Angling Soc., High Country Citizens' Alliance, and Western Colorado Congress.

Thomas Lustig, Boulder, for objector-appellee/cross-appellant Nat. Wildlife Federation.

Bruce C. Driver, Boulder, for objector-appellee/cross-appellant Rainbow Service.

Bratton and McClow, L. Richard Bratton, John H. McClow, Gunnison, Williams, Turner & Holmes, P.C., Anthony W. Williams, Grand Junction, for objector-appellee/cross appellant Upper Gunnison River Water Conservancy Dist.

David Baumgarten, Gunnison, for objector-appellee/cross-appellant Bd. of County Com'rs of Gunnison County.

Donald H. Hamburg, Glenwood Springs, for objector-appellee Colorado River Water Conservation Dist.

John F. Kappa, Montrose, for objector-appellees City of Delta and City of Montrose.

Dufford, Waldeck, Milburn & Krohn, Linda E. White, Grand Junction, Grimshaw & Harring, P.C., Wayne B. Schroeder, Denver, for objector-appellee City of Grand Junction.

Collins & Cockrel, P.C., Timothy J. Beaton, Denver, for objector-appellee City of Gunnison.

Moses, Wittemyer, Harrison and Woodruff, P.C., Charles N. Woodruff, Steven P. Jeffers, Mary Jo Menendez, Boulder, Van C. Wilgus, Denver, for objector-appellee Tri-State Generation and Transmission Ass'n, Inc.

Kenneth L. Spann, Almont, for objector-appellee Virgil and Lee Spann Ranches, Inc.

Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Patricia S. Bangert, Deputy Atty. Gen., Jennifer L. Gimbel, First Asst. Atty. Gen., Steven O. Sims, Asst. Atty. Gen., Denver, for objector-appellee State Engineer, Appellee Keith Kepler, Div. Engineer, Water Div. 4, and amicus curiae Colorado Conservation Bd.

John E. Kreidler, Montrose, for objector-appellee Uncompahgre Valley Water Users Ass'n.

White & Jankowski, Bruce D. Bernard, Austin C. Hamre, Scotty P. Krob, Denver, for amicus curiae City of Thornton.

Office of Douglas County Atty., J. Mark Hannen, Castle Rock, for amicus curiae The Bd. of County Com'rs of Douglas County.

Maynes, Bradford, Shipps & Sheftel, Frank E. "Sam" Maynes, Thomas H. Shipps, Durango, for amicus curiae Southwestern Water Conservation Dist.

Hobbs, Trout & Raley, P.C., Gregory J. Hobbs, Jr., Bennett W. Raley, Denver, for amicus curiae Northern Colorado Water Conservancy Dist. and its Municipal Subdistrict.

Anderson, Johnson & Gianunzio, Mark T. Pifher, Jonathan C. Dehmlow, Colorado Springs, for amicus curiae City of Colorado Springs.

No appearance on behalf of objector-appellees Henry J. Berryhill, Jr., Crested Butte Water and Sanitation Dist., Perkins D. Sams, East River at Almont Property Owners Ass'n, Gunnison County Elec. Ass'n, Murdie Homeowners' Ass'n, Inc., Mr. and Mrs. Charles Reeder, State Bd. of Land Com'rs, Three Rivers Resort, Inc., Joseph P. Vader, Raymond P. Van Tuyl, Charles Richard Collard, Thomas E. Collard, Taylor Park Pool Ass'n; and Wapiti Canyon Ranch, Ltd.

Justice ERICKSON delivered the Opinion of the Court.

The Board of County Commissioners for Arapahoe County (Arapahoe County) appeals from a judgment of the District Court, Water Division 4 (water court), dismissing Arapahoe County's applications for conditional water rights decrees in the Gunnison Basin. We affirm the water court's dismissal of the application for a conditional water rights decree that Arapahoe County purchased from the National Energy Resources Company (NECO). We reverse the water court's dismissal of Arapahoe County's application for a conditional water rights decree based upon a failure to prove water availability, and remand for further proceedings consistent with this opinion or for a new trial.

The water court's dismissal of Arapahoe County's application for a conditional water rights decree requires us to construe section 37-92-305(9)(b), 15 C.R.S. (1990), the "can and will" statute, ¹ and to determine the extent to which existing conditional and absolute decrees should be considered in determining water availability. In requiring Arapahoe County to prove the availability of water to complete the project in the application for a conditional water right, the water court assumed that all major senior conditional rights will become absolute, and that holders of absolute water rights decrees will divert the maximum amount permitted under the decrees. The "can and will" statute requires an applicant for a conditional water rights decree to prove the availability of water under river conditions existing at the time of the application as a threshold requirement to establishing that there is a substantial probability that the project can and will be completed with diligence and within a reasonable time. Accordingly, we reverse and remand for further proceedings consistent with this opinion or for a new trial.

I

The conditional water rights sought in these cases are for a large water development known as the Union Park Project. The original application was by NECO in 86-CW-226 and asserted a claim for conditional water rights for the Union Park Project. The Union Park Project included construction of the Union Park Reservoir with a capacity of 900,000 acre feet on Lottis Creek, a tributary to the Taylor River. Following a hearing on a motion for summary judgment in 86-CW-226, the water court dismissed most of the application on the grounds that it was a speculative appropriation. § 37-92-103(3)(a), 15 C.R.S. (1990).

Arapahoe County acquired the rights held by NECO to develop the Union Park Project and, on December 30, 1988, filed a separate application in 88-CW-178 to preserve the claims made by NECO in 86-CW-226. On November 30, 1990, Arapahoe County filed amended applications 86-CW-226 and 88-CW-178, which included a plan for augmentation as a contingency in the event the water court found that there was insufficient unappropriated water available to permit diversion of water without injury to existing water rights, and provided for alternate points of diversion.

The Union Park Project would take water from the Upper Gunnison River Basin, located west of the Continental Divide in Gunnison County, then move the water through a tunnel to the Antero Reservoir located east of the Continental Divide in Park County, and would finally transfer the water by a series of tunnels, pipelines, siphons, and flumes to Arapahoe County for ultimate use by its inhabitants and others who contracted with Arapahoe County for the purchase of water.

The proposed sources of water for the Union Park Project are tributaries of the Gunnison River. Within the Gunnison River Basin, the East River and the Taylor River join at the town of Almont in Gunnison County, Colorado to form the Gunnison River. The East River Basin extends over 300 square miles and the Taylor River Basin encompasses approximately 500 square miles. The Gunnison River is a tributary of the Colorado River, which it joins at the City of Grand Junction. Approximately 1.8 million acre feet of water per year flows from the Gunnison River Basin into the Colorado River.

In order to acquire the amount of water allegedly necessary for the Union Park Project, Arapahoe County relies on: six different points of diversion; eleven alternate points of diversion; use of federal reservoir storage facilities; assessment and redetermination of federal water rights; condemnation of existing water rights; change of use of conditional water rights from nonconsumptive to consumptive uses; plans for augmentation; the possible purchase of water rights; and the reevaluation of water rights in the Gunnison River Basin based on the actual legal use of water and present...